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HIGH COURT OF DELHI
Date of Decision: 03rd JULY, 2023 IN THE MATTER OF:
SOCIAL JURIST, A CIVIL RIGHTS GROUP ..... Petitioner
Through: Mr. Ashok Agarwal, Mr. Kumar Utkarsh, Mr. Manoj Kumar, Advocates
Through: Mr. Santosh Kumar Tripathi, Standing Counsel for GNCTD with
Mr.Pradyumn Rao, Ms. Aakriti Mishra, Mr. Utkarsh Singh, Ms.Mahak Rankawat, Advocates for
R-1 & R-2 Mr. Anurag Ahluwalia, CGSC with Mr.Tarveen Singh Nanda, GP for
UOI
Ms. Avnish Ahlawat, Standing Counsel for GNCTD with Ms. Tania Ahlawat, Mr. Nitesh Kumar Singh, Ms.Palak Rohmetra, Ms. Laavanya Kaushik, Ms. Aliza Alam, Advocates for R-3
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Petitioner, Social Jurist, A Civil Rights Group, is an organisation of lawyers and social activists has approached this Court by filing the instant Public Interest Litigation (PIL) for issuance of appropriate writ, order or direction directing the Respondents to expedite the finalization of Delhi School Education (Amendment) Bill, 2015, (hereinafter referred to as 'the Bill') which prescribes for prohibition of screening procedure in the matter of admission of children at pre-primary level (nursery/pre-primary) in schools.
2. It is stated that the Bill banning screening procedure in nursery admissions in schools, was prepared in the year 2015 and for the last seven years without any justification and against public interest, the Bill is hanging between Central Government and Delhi Government and is not being passed by the Respondents. It is stated that the delay in proceeding further acts contrary to the interest of children in the matter of admission to nursery/preprimary in private schools and has resulted in arbitrary procedure being adopted by different schools in matters of admission of children at preprimary level.
3. The Petitioner seeks to rely on the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as „the RTE Act‟) to contend that in order to implement the provisions of the RTE Act, it was felt necessary to do away with the screening procedure for admission of children to nursery/pre-primary classes. It is stated that the Bill attempts to ensure that there is no discrimination amongst children in the matter of admission to the pre-primary classes and also endeavours to check commercialisation of education at the stage of admission of children to the schools.
4. The Petitioner states that in a reply dated 11.04.2023 from Respondent No.2 to a query under the Right to Information Act, 2005, it has been revealed that the Bill is pending between the State Government and the Central Government. The Petitioner also places reliance on a judgment of the Division Bench of this Court in Social Jurist, A Civil Rights Group v. Govt. of NCT of Delhi & Anr., 2013 (134) DRJ 529 (DB), wherein Division Bench of this Court has held that the Government must consider the applicability of the Right to Education Act to nursery classes as well.
5. The Petitioner also states that the Apex Court vide its Order dated 24.04.2023 in W.P.(C) 333/2023 has held that the Governor must give assent to any Bill that is placed before him or return the Bill if it is not a Money Bill together with a message for re-consideration to the House or the Houses of the State Legislature and the expression given "as soon as possible" in Article 200 of the Constitution of India has a significant constitutional content and must be borne in mind by the constitutional authorities.
6. Heard learned Counsel for the parties and perused the material on record.
7. Article 196 to 201 of the Constitution of India deals with the legislative procedures regarding passing of Bills. Article 197 to 199 of the Constitution of India deals with Money Bills, which is not the subject matter of the present writ petition.
8. Article 200 of the Constitution of India deals with assent of bills, which reads as under:-
9. Article 200 of the Constitution of India provides that when a Bill is passed by a State Legislature, it is presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds the assent therefrom or that he reserves the Bill for the consideration of the President for assent.
10. The proviso to Article 200 of the Constitution of India provides that if the Governor after the presentation of the Bill to him for assent, returns the Bill together with a message to the House/Houses for reconsideration of the Bill or any specified provisions thereof and, in particular, he can also consider desirability of introducing any such amendment as he may recommend in his message. Till the assent is not granted, the legislative process is not completed. It is well settled that Courts cannot issue a writ of mandamus to the Governor directing the Governor to pass the Bill and it is always for the Governor to give his assent or withhold his assent to any Bill however desirable the legislation may be.
11. The High Court of Allahabad in Chotey Lal v. The State of Uttar Pradesh & Ors., AIR 1951 All 228, has observed as under:-
interfere with that, legislation before its will has been ascertained. xxx
32. As pointed out already, the limitation on the power of a Court to issue a writ or direction to a Legislature in connection with the tatter's proceedings arises from the provisions of the Constitution (Articles 105 & 194), & from the inherent powers possessed by the Legislature as discussed above. Legislative enactments which take away or abridge the rights conferred by Part III of the Constitution can only be declared void after they have been made & that is the only remedy in such cases for the enforcement of the rights conferred by Clause (2) of Article 13. I have no doubt that we have no power to issue the writ or direction prayed for."
12. The Apex Court in State of Jammu & Kashmir v. A R Zakki & Ors., 1992 Supp (1) SCC 548, has observed as under:-
13. We agree with the view taken by the High Court of Allahabad. It is not proper for this Court to issue any kind of writ to the Governor and interfere in a legislative process whether to accept or reject a Bill within any timeframe. It is not proper for a High Court while exercising its jurisdiction under Article 226 of the Constitution of India to direct a Governor who is a constitutional authority to set a timeframe in matters which come purely within the domain of the Governor. In the considered opinion of this Court, even though the Bill has been passed by the House, it is always open to the Governor to agree or to send the Bill back to the House and this Court ought not to pass a writ of mandamus directing the Governor to act by passing a writ.
14. A perusal of the above judgments shows that after the Bill had a passage through the House of Legislature of a State, it is presented to the Governor and it is for the Governor to declare at that stage whether he gives assent or he withholds the assent or refers the Bill to the President for assent. What the Governor does is peculiarly within his discretion and, exercising his discretion, he cannot feel bound on the act and advice of his Ministers. Courts cannot control or interfere in this procedure and cannot direct the Governor or pass a writ to the Governor to grant assent or desist from granting assent. Article 200 of the Constitution of India within its fold indicates that the Governor must as soon as possible after the presentation of the Bill to him for his assent either return the Bill together with a message to the House/Houses to reconsider the Bill or any specified provision thereof.
15. In view of the fact that mandamus as prayed for cannot be granted, the writ petition is rejected as not maintainable, along with pending application(s), if any.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J JULY 03, 2023