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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT     PETITION     (CIVIL)     NO.     631     OF     2004   

Environment & Consumer Protection Foundation .. Petitioner

Versus

Delhi Administration & Ors. ..  

Respondents

J     U     D     G     M     E     N     T   

K.     S.     Radhakrishnan,     J.   

1. This Court’s jurisdiction under Article 32 of the Constitution of  

India has been invoked by the petitioner, a registered charitable  

society, seeking various directions to improve the conditions of  

Government and aided schools and also school run by the local  

authorities so that the constitutional objective of providing free and

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compulsory education under Article 21A of the Constitution of India  

would be a reality.   

2. The Writ Petition was filed in the year 2004 and since then,  

several interim orders have been passed giving directions to the  

States and the Union Territories to provide the basic infrastructure  

facilities like toilet facility, drinking water, class rooms, appointment  

of teachers and all other facilities so that children can study in a  

clean and healthy environment.  While the matter was pending  

before this Court, the Parliament enacted the Right of Children to  

Free and Compulsory Education Act, 2009 (in short ‘the RTE Act’).  

The constitutional validity of the RTE Act was challenged before this  

Court and this Court, vide its Judgment dated 12.4.2012 in Society  

for Unaided Private Schools of Rajasthan v. Union of India  

and Another (2012)6 SCC 1, upheld its validity and gave various  

directions, some of which are as follows:

(a) In exercise of the powers conferred upon the  appropriate Government under Section 38 of the  RTE Act, the Government shall frame rules for  carrying out the purposes of this Act and in

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particular, the matters stated under sub-Section (2)  of Section 38 of the RTE Act.   

(b)The directions, guidelines and rules shall be framed  by the Central Government, appropriate Government  and/or such other competent authority under the  provisions of the RTE Act, as expeditiously as  possible and, in any case, not later than six months  from the date of pronouncement of this judgment.

(c) All the State Governments which have not  constituted the State Advisory Council in terms of  Section 34 of the RTE Act shall so constitute the  Council within three months from today.  The  Council so constituted shall undertake its requisite  functions in accordance with the provisions of  Section 34 of the Act and advise the Government in  terms of clauses (6), (7) and (8) of this order  immediately thereafter.

(d)Central Government and State Governments may set  up a proper Regulatory Authority for supervision  and effective functioning of the Act and its  implementation.

3. This Court, therefore, directed the Central Government,  

appropriate Government and other competent authorities functioning  

under the RTE Act to issue proper directions/guidelines for its full  

implementation within a period of six months from the date of the

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pronouncement of that judgment.  This Court also directed all the  

State Governments to constitute State Advisory Council within three  

months from the date of that judgment.   Advisory Councils so  

constituted were directed to discharge their functions in accordance  

with the provision of Section 34 of the RTE Act and advise the  

Government in terms of Clauses (6), (7) and (8)  of this Court’s  

order.  The necessity of constituting a proper Regulatory Authority  

for effective functioning of the RTE Act and its implementation was  

also highlighted. The Central Government was also directed to frame  

rules, in exercise of its powers under Section 38 of the RTE Act, for  

proper implementation of the RTE Act.  

4. On the basis of directions issued by this Court in this Writ  

Petition, some of the States have responded by furnishing the details  

of infrastructure facilities available in the schools situated in their  

respective States.   This Court noticed that some of the schools have  

not provided proper toilet facilities for boys and girls and in some of  

the schools, it was noticed, that there is no provision for drinking  

water as well.  Detailed interim orders were passed by this Court on

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29.4.2011 and 22.9.2011.  On 18.10.2011, this Court passed the  

following order:

“We have heard the learned counsel for the  parties.  It is imperative that all the schools must  provide toilet facilities.  Empirical researches have  indicated that wherever toilet facilities are not  provided in the schools, parents do not send their  children (particularly girls) to schools.  It clearly  violates the right to free and compulsory education  of children guaranteed under Article 21-A of the  Constitution.

We direct all the States and the Union  Territories to ensure that toilet facilities are made  available in all the schools on or before 30th  

November, 2011.  In case it is not possible to have  permanent construction of toilets, at least  temporary toilets be provided in the schools on or  before 30th November, 2011 and permanent toilets  be made available by 31st December, 2011.

We direct the Chief Secretaries/Administrators  of all the States/Union Territories to file their  affidavits on or before 30th November, 2011.”

5. Again, on 5.12.2011, this Court reiterated the directions as  

follows:

“In our previous order dated 18.10.2011, we  clearly indicated that it is imperative that all the  schools must provide toilet facilities; empirical  researches have indicated that wherever toilet  facilities are not provided in the schools, parents do  not send their children (particularly girls) to schools.

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It clearly violates the right to free and compulsory  education of children guaranteed under Article 21-A  of the Constitution.  Office Report dated 3rd day of  December, 2011 indicates that despite opportunity  granted, the States of Tamil Nadu, Gujarat,  Chhattisgarh, Meghalaya, West Bengal, Arunachal  Pradesh, Punjab, Goa, Tripura and Union Territory  of Lakshdweep have not filed their affidavits.  One  more opportunity is granted to these States/Union  Territory to file their affidavits.  Let the affidavits be  filed within two weeks from today.  No further time  shall be granted for this purpose.

We are told that the Ministry of Drinking Water  and Sanitation is the concerned ministry.  We  request the learned additional Solicitor General  appearing on behalf of the Union of India to take  instructions from the Ministry of Drinking Water and  Sanitation and file an affidavit within four weeks  from today, indicating therein the latest position  about the problem of drinking water in the country.”

6. The situation that we get in few States has been elaborately  

dealt with by this Court in its interim order dated 13.1.2012.  Some  

of the States have taken some positive steps, but some the States  

still lag behind.  Taking note of all those aspects, this Court passed  

an order on 12.3.2012, the operative portion of which reads as  

follows:

“The Chief Secretaries of various States were  directed to ensure that separate permanent toilets

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for boys and girls are constructed in all the schools  in their respective States on or before 31st March,  2012 and in case it was not possible to construct  permanent toilets, then at least emporary toilet  facilities were directed tobe made available on or  before 28th February, 2012 and it was directed than  an affidavit to that effect shall be filed by the Chief  Secretaries on or before 28th February, 2012.

In pursuance of the aforesaid directions of this  Court, affidavits have been filed by the States of  Uttar Pradesh, Assam, Meghalaya, Mizoram,  Chhattisgarh, Punjab, Nagaland, West Bengal,  Andhra Pradesh, Maharashtra, Uttarakhand,  Odhisha, Karnataka, Jharkhand, Himachal Pradesh,  Goa, Municiapl Corporation of Delhi and the Union  Territory of Lakshadweep.  These States/union  Territories in their respective affidavits have  indicated that they have either constructed the  toilets for boys and girls or they would complete it  before the stipulated date that is before 31st March,  2012.

According to the Office Report dated 3rd day of  March, 2012, following States have not filed their  affidavits:

1.    Tripura 2.    Tamil Nadu 3.    Sikkim 4.    Gujarat 5.    Bihar 6.    Rajasthan 7.    Jammu and Kashmir 8.    Madhya Pradesh 9.    Kerala

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In the interest of justice, we grant one more  opportunity to these States to file their respective  affidavits within two weeks from today, failing which  the Chief Secretary of the State concerned shall  remain present in this Court on the next date of  hearing.  No further time shall be granted.

Learned counsel appearing on behalf of the  Ministry of Drinking Water and Sanitation has  handed over an affidavit of Sujoy Mojumdar,  Director (Water), Ministry of Drinking Water and  Sanitation, Government of India.  In the affidavit it  is mentioned that under the “Total Sanitation  Campaign”  (TSC), the Central Government  supplements the efforts of the States in providing  sanitation facilities in the rural areas, including  identified existing rural Government schools and  Anganwadis by providing them with financial  assistance and technical support.  It is further  submitted in the affidavit that under the TSC, at  present, School Sanitation Hygiene Education  Programme is operational in 607 districts spread  across 30 States and Union Territories and a total of  11,99,117 school toilets have been financially  assisted under the TSC.  The cumulative progress of  school toilets unit blocks financially assisted under  the TSC in the entire country till 29.2.2012 are as  follows:

Project Objectives - 13,14,636

Project Performance - 11,99,117

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Percentage-wise progress - 91.21%

In paragraph 9 of the said affidavit it is stated  that provision of sanitation facility in Government  schools is made by States within their TSC  allocation.  Out of the total of Rs.3068.51 crore  approved for School Sanitation under TSC,  s.2268.28 crore (cumulative) has been reported as  expenditure and utilized by the States.  The State- wise details of financial progress and utilization  under TSC till 29.2.2012 are tabulated and enclosed  along with the affidavit.

In paragraph 10 of the affidavit it is mentioned  that as per information provided by the Department  of School Education and Literacy, Ministry of Human  Resource Development, the number of Government  schools with sanitation facility available, as per their  District Information System for Education (DISE)  2010-11 is as under:

Total Number of Govt. Schools - 10,96,064

Government Schools with Girls Toilet - 6,24,074

Government Schools with Boys/ Common Toilet -

8,24,605

Let copies of this affidavit be supplied by the  Registry to the learned counsel appearing for the  States/Union Territories within one week from  today.

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Mr. Ravindra Bana, learned counsel appearing  on behalf of the petitioner submits that after this  Court has dealt with the problem of electricity,  potable drinking water and toilets for boys and girls  in the Government schools, the other main problem  which is still persistent in most of the schools is  regarding teachers and infrastructure.  In order to  ensure compliance of Article 21A of the Constitution,  it is imperative that schools must have qualified  teachers and basic infrastructure.

Learned counsel appearing on behalf of the  National University for Educational Planning and  Education undertakes to file a comprehensive  affidavit giving therein up-to-date position about the  availability of teachers and infrastructure in schools.

Let a comprehensive affidavit be filed by all  the States/Union Territories regarding teachers and  infrastructure in schools within three weeks from  today, with an advance copy to the learned counsel  for the petitioner and the counsel for the  States/Union Territories.”

7. We notice that some of the States have not fully implemented  

the directions issued by this Court in Society for Unaided Private  

Schools of Rajasthan (supra) as well as the provisions contained  

in the RTE Act.   Considering the facts that this Court has already  

issued various directions for proper implementation of the RTE Act  

and to frame rules, there is no reason to keep this Writ Petition  

pending.  

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8. We also notice that Section 31 of the RTE Act has also  

conferred certain functions on the National Commission for  

Protection of Child Rights and also on the State Commissions.  

Section 31 reads as follows:

“31. Monitoring of child’s right to education.-  (1) The National Commission for Protection of Child  Rights constituted under section 3, or, as the case may  be, the State Commission for Protection of Child Rights  constituted under section 17, of the Commissions for  Protection of Child Rights Act, 2005, shall, in addition to  the functions assigned to them under that Act, also  perform the following functions, namely:—

(a) examine and review the safeguards for rights  provided by or under this Act and recommend  measures for their effective implementation;

(b) inquire into complaints relating to child's right  to free and compulsory education; and

(c) take necessary steps as provided under  sections 15 and 24 of the said Commissions  for Protection of Child Rights Act.

(2) The said Commissions shall, while inquiring into any  matters relating to child's right to free and compulsory  education under clause (c) of sub-section (1), have the  same powers as assigned to them respectively under  sections 14 and 24 of the said Commissions for Protection  of Child Rights Act.

(3)  Where the State Commission for Protection of Child  Rights has not been constituted in a State, the

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appropriate Government may, for the purpose of  performing the functions specified in Clauses (a) to (c) of  sub-section (1), constitute such authority, in such  manner and subject to such terms and conditions, as may  be prescribed.”

We are confident that those statutory authorities will also  

examine and review the safeguards for the child’s rights and  

recommend measures for their effective implementation.   

9. We are, inclined to dispose of this Writ Petition with a direction  

to all the States to give effect to the various directions already given  

by this Court like providing toilet facilities for boys and girls, drinking  

water facilities, sufficient class rooms, appointment of teaching and  

non-teaching staff etc., if not already provided, within six months  

from today.  We make it clear that these directions are applicable to  

all the schools, whether State owned or privately owned, aided or  

unaided, minority or non-minority.  As the writ petition is disposed  

of, no orders are required to be passed on applications for  

intervention and impleadment and the same are disposed of.

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10. We make it clear that if the directions are not fully  

implemented, it is open to the aggrieved parties to move this Court  

for appropriate orders.    

……………………………….…J (K. S. RADHAKRISHNAN)

…………………………………..J. (DIPAK MISRA)

New Delhi, October 3, 2012

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ITEM NO.1C               COURT NO.11             SECTION PIL

[FOR JUDGMENT]

           S U P R E M E   C O U R T   O F   I N D I A

                        RECORD OF PROCEEDINGS

                   WRIT PETITION (CIVIL) NO(s). 631 OF 2004

ENVIRONMENTAL & CONSUMER PROTECT. FOUND.          Petitioner(s)

                VERSUS

DELHI ADMINISTRATION & ORS.                       Respondent(s)

Date: 03/10/2012  This Petition was called on for judgment today.

For Petitioner(s) Mr. Ravindra Bana,Adv.

For Respondent(s) Ms. Sunita Sharma,Adv.

Ms. Sushma Suri,Adv.

Mrs. Anil Katiyar, Adv.  

Mr. D.S. Mahra,Adv.

Mr. Khwairakpam Nobin Singh,Adv.

Mr. Sapam Biswajit Meitei,Adv.

Mr. Manjit Singh,AAG, State of Haryana

Mrs. Vivekta Singh,Adv.

Mr. Tarjit Singh,Adv.

Mr. Kamal Mohan Gupta,Adv.

Mr. Atul Jha,Adv.

Mr. Sandeep Jha,Adv.

Mr. Dharmendra Kumar Sinha,Adv.

Dr. Manish Singhvi,AAG, State of Rajasthan

Mr. Irshad Ahmad,Adv.

Mr. Sanjiv Sen,Adv.

Mr. P. Parmeswaran,Adv.

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Mr. Ranjan Mukherjee,Adv.

Mr. S. Bhowmick,Adv.

Mr. S.C. Ghosh,Adv.

Mr. Sunil Fernandes,Adv.

Ms. Vernika Tomar,Adv.

Ms. Astha Sharma,Adv.

Mr. Amitesh Kumar,Adv.

Mr. Ravi Kant,Adv.

Ms. Prerna Mehta,Adv.

     Ms. Binu Tamta ,Adv

                    Mr. G. Prakash ,Adv

                    Mr. Gopal Singh ,Adv

                    Ms. Hemantika Wahi ,Adv

                    Mr. Naresh K. Sharma ,Adv

                    Ms. Pratibha Jain ,Adv

                    Mr. Surya Kant ,Adv

                    Mr. Shrish Kumar Misra ,Adv

                    Mr. Tara Chandra Sharma ,Adv

                    M/S Arputham,Aruna & Co. ,Adv

                    Mr. Irshad Ahmad ,Adv

                    Mr. V.G. Pragasam ,Adv

                    Mr. S. Rajappa ,Adv

                    Mr. Krishnanand Pandeya ,Adv

                    Mr. Ramesh Babu M.R. ,Adv

                    Mr. Radha Shyam Jena ,Adv

                    Ms. Asha Gopalan Nair ,Adv

                    Mr. Abhijit Sengupta ,Adv

                    Ms. Bina Madhavan ,Adv

                    Mr. Jagjit Singh Chhabra ,Adv

                    M/S Corporate Law Group ,A.O.R.

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                    Ms. Vibha Datta Makhija ,Adv

                    Mr. Kuldip Singh ,Adv

                    Mr. S. Thananjayan ,Adv

                    Mr. Abhishek Atrey ,Adv

                    Mr. G.N.Reddy ,Adv

                    Mr. Sudarshan Singh Rawat ,Adv

                    M/S. Bhatia & Co. ,Adv

                    Ms. Prerna Mehta ,Adv

Hon'ble Mr. Justice K.S. Radhakrishnan  pronounced reportable judgment of the Bench comprising His  Lordship and Hon'ble Mr. Justice Dipak Misra.

In terms of signed reportable judgment, the writ  petition is disposed of.   

(A.D. Sharma)

Court Master

(Renuka Sadana)

Court Master

(Signed reportable judgment is placed on the file)