Justice For All Vs Government of NCT of Delhi Ors On 18 September 2020

Justice For All vs Government Of Nct Of Delhi & Ors on 18 September, 2020
Delhi High Court

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3004/2020 & CM APPLS. 10415-10417/2020, 10675/2020,

12235-12236/2020
JUSTICE FOR ALL ..... Petitioner

Through: Mr. Khagesh B. Jha, Advocate with
Ms. Shikha Sharma Bagga, Secretary
of petitioner.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents

Through: Mr. Ramesh Singh, Standing
Counsel, Mr. Santosh Kumar
Tripathi, ASC with Ms. Bhawna
Kataria, Advocate for R-1/GNCTD.
Mr. Harish Vaidyanathan Shankar,

CGSC and Mr. Varun Kishore,
Advocate for R-2/UOI.
Mr. Amit Bansal, Advocate with

Ms. Seema Dolo, Advocate for
R-3/CBSE.
Mr. Akhil Mittal, Standing Counsel

for R-4/North DMC.
Mr. Sriharsha Peechara, Advocate

for R-5/SDMC.
Mr. Harish Kumar Khinchi, Standing

Counsel with Mr. Akash Rajawat,
Advocate for R-6/EDMC
Mr. Anil Grover, Standing Counsel

with Ms. Noopur Singhal, Mr.
Mishal Vij and Mr. Satish Kumar,
Advocates for R-7/New Delhi
Municipal Council.
WP(C) 3004/2020 Page 1 of 94

Mr. Ajit Kumar Sinha, Sr. Advocate
with Mr. Srijan Sinha, Advocate for
R-8 (Sanskriti School).
Mr. Puneet Mittal, Sr. Advocate with

Mr. Rupender Pratap Singh,
Indian Kanoon - http://indiankanoon.org/doc/68322878/ 1

Mr. Vasudha Bajaj , Mr.

Abhiesumant Gupta and Ms. Pratima
Gupta, Advocates for R-9.
Mr. H.L. Tiku, Senior Advocate with

Ms. Yashmeet Kaur, Advocate for
R-11/Apeejay School.
Ms. Apoorva Pandey, Advocate for

respondent No.12.
Mr. Vedanta Varma and Ms. Mannat

Sandhu, Advocates for R-13.
Mr. Anirudh Bakhru with Mr. Ayush

Puri, Advocates for R-14 & R-16.
Mr. Piyush Gupta, Advocate with

Mr. Kapil Goyal, Advocate for R-15.
Mr. Sunil Gupta, Senior Advocate

with Mr. Kamal Gupta, Advocate
with Mr. Nikhil Kukreja and
Mr. Vaibhav Mehra, Advocates for
R-10, 17 & 18.
% Reserved On: 02nd September, 2020

Date of Decision: 18th September, 2020
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE SANJEEV NARULA
WP(C) 3004/2020 Page 2 of 94

JUDGMENT
MANMOHAN, J
1. It has been wisely said "education is the passport to the future. But what if some passports are
better than others, giving the holder access to a better mode and method of education and in turn, a
more prosperous future.
2. Inequality in education has been around long before Covid-19, but the pandemic has exacerbated
the same by adding another strand/element to it, namely, digital divide.
3. The unparalleled education disruption from the Covid-19 pandemic is far from over, as despite
lapse of nearly six months, Union of India and Government of NCT of Delhi (for short "GNCTD")

are yet to announce a date for reopening of physical classroom for elementary schools.
4. According to UN Secretary General, Antonio Guterres, the Covid-19 pandemic has the potential to
exacerbate entrenched inequalities and waste untold human potential as well as undermine decades
of progress.
PRAYERS IN THE WRIT PETITION
5. Initially, the instant public interest litigation was filed seeking a direction to the respondents to
supply free laptops/android mobile phones/Electronic Tablets with high speed internet to children
belonging to Economically Weaker Sections or Disadvantaged Groups (hereinafter referred to as
"EWS/DG") so that they could attend their classes by way of video conferencing just like fee paying
students in their classes. The initial writ petition was confined to the following children, as their
schools only were conducting online classes at that time: -
(A) A child admitted under section 12(1)(c) of the Act, 2009 in non-minority private
schools.
(B) A child admitted under notification dated 30 th December, 2013 in schools which
had been allotted land by government agencies at concessional rates.
(C) A child admitted in minority school Protected by para 65A of Society for Unaided
Private Schools of Rajasthan Vs. Union of India and Another, (2012) 6 SCC 1.
6. As during the pendency of the present petition, some other schools also started online classes, the
petitioner sought modification in the prayer clause to include children studying in these schools, so
that comprehensive orders could be passed under Article 21A of the Constitution of India for all the
children other than fee paying students. Learned counsel for the petitioner stated that for children
studying in minority schools, the State should bear the burden. Accordingly, the modification in the
prayer clause was allowed vide order dated 06th August, 2020 and the following students were
added subsequently as beneficiaries:-
(A) A child admitted in government School.
(B) A child admitted in non-minority aided school.
(C) A child admitted in aided minority school prior to judgment of the Supreme Court
in Pramati Educational and Cultural Trust (Registered) And Others vs. Union of
India & Ors., (2014) 8 SCC 1.
(D) A child suffering from multiple disabilities who has opted for home-based
education as his or her choice under proviso Section 3(iii) of the Act, 2009.
7. The amended prayer clause in the writ petition is reproduced hereinbelow:-

i) an appropriate writ order or direction to respondents to ensure that the free

laptop/I-pad/Mobile Phone and high speed Internet or any other equipment
required for on-line classes through video conferencing, be provided free of cost to
every child defined under section 2(c) of the RTE Act except fee paying children with
immediate effect irrespective of their school where they study or they have opted for
home based education as a choice permitted to them under section 3(iii) of the RTE
Act, 2009.
ii) an appropriate writ order or direction to the respondents R-1 to R-6 to ensure the
EWS/DG children defined under the RTE Act, studying in pvt schools should not face
any financial barrier which may prevent him or her from getting equitable quality
education in the same manner and with the same equipment their fee paying
counterpart is getting in schools recognized by them.
iii) An appropriate writ order or direction to R-1, R-3, R-4, R-5 and R-6 to ensure
Uniform Equitable Education through in- tractive on-line classes in school run by
them and provide free equipments so their students shall not be segregated from
their counterpart studying in the private schools recognized by them.
iv) To pass an appropriate order or direction to the R-2 to disburse the central share
for implementation of on-line education as prayed in prayer (i) to (iii) and also for
the construction of hostels for destitute children as per the provisions of RTE Act.
v) to pass any other order or further orders this Hon'ble court deems fit on the basis
of above mentioned facts and circumstances of the case.
vi) Allow the present writ petition with cost. ARGUMENTS ON BEHALF OF THE PETITIONER
8. Mr. Khagesh B. Jha, learned counsel for the petitioner stated that the present petition highlights
the non-implementation of the right to free and compulsory education created under Article 21A of
the Constitution of India read with Sections 3 and 8 of the Right of Children to Free and Compulsory
Education Act, 2009 (hereinafter referred to as RTE Act, 2009). According to the petitioner, use of
different technologies to teach children at both the inter-school and intra-class level amounts to
discrimination.
9. He submitted that Articles 19(1)(a), 21 and 21A guarantee the right to free and compulsory
education to every child between six and fourteen years, which was earlier granted under Article 45,
subject to financial constraints. According to him, the intent behind Article 21A is that the State
should not deny the aforesaid right of education on the ground of non- availability of funds.
10. Mr. Khagesh B. Jha submitted that a Fundamental Right, especially one declared as an axis to
the Indian Constitution', cannot be allowed to be violated. He submitted that as per Section 2(c) of
the RTE Act, 2009 all children between six and fourteen years of age fall within the definition of
"child and Section 3 of the RTE Act, 2009 is a statutory transcription of Article 21A. He emphasized

that the word "manner" appearing in Article 21A cannot be read in a way that would dilute the right
of education guaranteed through word free - which means that the right to education is free from
cost, from discrimination, from fear, from mental trauma, from State inaction, from bureaucratic
mindset, from inaction of parents etc.
11. He submitted that Section 12(1)(c) of the RTE Act, 2009 transferred the burden of providing free
and compulsory education of a limited number of children (25%) to private schools (which were
otherwise charitable in law) and the proviso to the said section stipulates/clarifies that free
education as defined under RTE Act, 2009 includes everything.
12. Learned counsel for the petitioner relied upon the judgment of the Supreme Court in Society For
Unaided Private Schools of Rajasthan (supra) wherein the word "free" has been given a wide
interpretation by the Court. The relevant portion of the said judgment relied upon by him is
reproduced hereinbelow:-
40. Indeed, by virtue of Section 12(2) read with Section 2(n)(iv), a private unaided
school would be entitled to be reimbursed with the expenditure incurred by it in
providing free and compulsory education to children belonging to the above category
to the extent of per child expenditure incurred by the State in a school specified in
Section 2(n)(i) or the actual amount charged from the child, whichever is less. Such a
restriction is in the interest of the general public. It is also a reasonable restriction.
Such measures address two aspects viz. upholding the fundamental right of the
private management to establish an unaided educational institution of their choice
and, at the same time, securing the interests of the children in the locality, in
particular, those who may not be able to pursue education due to inability to pay fees
or charges of the private unaided schools.
41. We also do not see any merit in the contention that Section 12(1)(c) violates
Article 14. As stated, Section 12(1)(c) inter alia provides for admission to Class I, to
the extent of 25% of the strength of the class, of the children belonging to weaker
sections and disadvantaged group in the neighbourhood and provide free and
compulsory elementary education to them till its completion. The emphasis is on free
and compulsory education. Earmarking of seats for children belonging to a specified
category who face financial barrier in the matter of accessing education satisfies the
test of classification in Article 14. Further, Section 12(1)(c) provides for a level playing
field in the matter of right to education to children who are prevented from accessing
education because they do not have the means or their parents do not have the means
to pay for their fees.
xxx xxx xxx
45. At the outset, we may reiterate that Article 21-A of the Constitution provides that
the State shall provide free and compulsory education to all children of the specified
age in such manner as the State may, by law, determine. Thus, the primary obligation

to provide free and compulsory education to all children of the specified age is on the
State. However, the manner in which this obligation will be discharged by the State
has been left to the State to determine by law. The State may do so through its own
schools or through aided schools or through private schools, so long as the law made
in this regard does not transgress any other constitutional limitation. This is because
Article 21-A vests the power in the State to decide the manner in which it will provide
free and compulsory education to the specified category of children. As stated, the
2009 Act has been enacted pursuant to Article 21-A.
xxx xxx xxx
47. The above judgments in T.M.A. Pai Foundation [(2002) 8 SCC 481] and P.A.
Inamdar [(2005) 6 SCC 537] were not concerned with interpretation of Article 21-A
and the 2009 Act. It is true that the above two judgments have held that all citizens
have a right to establish and administer educational institutions under Article
19(1)(g), however, the question as to whether the provisions of the 2009 Act
constituted a restriction on that right and if so whether that restriction was a
reasonable restriction under Article 19(6) was not in issue.
48. Moreover, the controversy in T.M.A. Pai Foundation [(2002) 8 SCC 481] arose in
the light of the scheme framed in Unni Krishnan case [(1993) 1 SCC 645] and the
judgment in P.A. Inamdar [(2005) 6 SCC 537] was almost a sequel to the directions
in Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC 697] in which
the entire focus was institution-centric and not child-centric and that too in the
context of higher education and professional education where the level of merit and
excellence have to be given a different weightage than the one we have to give in the
case of Universal Elementary Education for strengthening social fabric of democracy
through the provision of equal opportunities to all and for children of weaker sections
and disadvantaged group who seek admission not to higher education or professional
courses but to Class I.
13. He also relied upon the judgment of the Supreme Court in Pramati Educational and Cultural
Trust (Registered) And Others (supra) wherein judgment in Society For Unaided Private Schools of
Rajasthan (supra) has been reaffirmed and the Court rejected most of the arguments which,
according to him, have now been raised in the counter affidavits filed by the private schools herein.
The relevant portion of the Supreme Court judgment in Pramati Educational and Cultural Trust
(Registered) And Others (supra) is reproduced hereinbelow:-
56. In the result, we hold that the Constitution (Ninety-third Amendment) Act, 2005
inserting clause (5) of Article 15 of the Constitution and the Constitution
(Eighty-sixth Amendment) Act, 2002 inserting Article 21-A of the Constitution do not
alter the basic structure or framework of the Constitution and are constitutionally
valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the
Constitution. We, however, hold that the 2009 Act insofar as it applies to minority

schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is
ultra vires the Constitution.....
14. Mr. Jha stated that Section 12(2) of the RTE Act, 2009 makes provision for and defines the
extent of reimbursement to the private unaided schools as defined under Section 2(n)(iv), which are
providing free and compulsory education in terms of Section 12(1)(c). However, he submitted that
the proviso to Section 12(2) stipulates that if schools are pre- paid in terms of concessional land or
other facilities, the said schools are not entitled to reimbursement.
15. Learned counsel for the petitioner further relied upon the judgments in Social Jurists, A Lawyers
Group vs. Government of NCT of Delhi & Ors., 140 (2007) DLT 698 (DB) and Union of India Vs.
Moolchand Kharaiti Ram Trust, 2018 SCC Online SC 675 wherein it has been held that in enforcing
charities, Article 19(6) does not come in the way. In the said case, the Court held that
pre-determined rate is concessional in nature and the condition to impose any charity can be
enforced without any law as that is the purpose behind allotment of land.
16. He emphasized that Section 8(d) of the RTE Act, 2009 casts a duty upon the State/GNCTD to
provide all the requisite infrastructure including school building, teaching staff as well as learning
equipment, which includes the gadgets required to participate in virtual classrooms/online
education.
17. He stated that the intent of the legislature behind including anything and everything in Article
21A of the Constitution and Sections 3 and 8 of RTE Act, 2009 is keeping in mind the dynamic
nature of requirement which is different for every child and the same is regulated only by the norms
enumerated in Section 19 read with the Schedule to the RTE Act, 2009 and the curriculum decided
by the academic authority under Section 29 of the RTE Act, 2009.
18. He further stated that the academic authority is not authorised to customize the curriculum on
any ground i.e. one for government school and another for private school or one for students having
means and another for students not having means. According to him, if the academic authority, like
in the present case, has already decided that online classes through video conferencing is good for
education, then the GNCTD is bound to spend on the same, as they are not allowed to create a
vertical divide between government schools and private schools. He pointed out that even if the
academic authority wanted to depart from the policy, they cannot do so in view of the New
Education Policy, 2020 wherein online education is one of the essential features. He contended that
if the arguments of the respondents in their counter affidavits are accepted, it would render Article
21A infructuous.
19. He also contended that in violation of Rule 10(2) of the Delhi RTE Rules, 2011 and Article 21A of
the Constitution read with Sections 3 and 8 of the RTE Act, 2009, some schools were using different
methods for teaching the fee-paying students as compared to the students belonging to EWS/DG
category and the said practice amounts to a vertical divide. He pointed out that the
counter-affidavits filed by NDMC-respondent no.7 and Sanskriti School-respondent no. 8
categorically admit that children from EWS category and their fee-paying counterparts are using

different methods and modes of education. He contended that this practice is violative of Article 21A
read with Sections 3 and 8 of the RTE Act, 2009 and constitutes a clear vertical divide.
20. Learned counsel for the petitioner stated that even though respondent no.1 supported the case of
the petitioner, it has narrowed down the entitlement of children facing difficulty. According to him,
anything that is unavailable to the children belonging to EWS/DG but is available to their
counterpart i.e. fee-paying students, amounts to prevention from pursuing and completing
elementary education as mentioned in Section 3(2) of the RTE Act, 2009.
21. He submitted that fee-paying parents cannot be compelled to pay to school management (which
has other sources of income) for charity as cross-subsidy is illegal in view of the Apex Courts
judgment in Unni Krishnan, J.P. and Others Vs. State of Andhra Pradesh and Others, (1993) 1 SCC
645.
22. He contended that it is the duty of the State to identify the said challenges and the onus is not on
the parents or child to prove whether there is something preventing the child from pursuing his/her
education. He further contended that inaction of respondent no.1 amounted to an abrogation of
duty under the RTE Act, 2009 inasmuch as the State has no power to transfer the burden upon
parents of the child by forcing them to file a complaint.
23. He stated that as per the mandate of Section 7 of the RTE Act, 2009, the Central Government
and State Government/GNCTD have a concurrent responsibility to provide funds for carrying out
the provisions of the Act.
24. He pointed out that respondent no.2 in its counter affidavit has stated that funding for the Sarva
Shiksha Abhiyan which has now been converted into Samagra Shiksha Abhiyan is sufficient
discharge of their obligations under Section 7 of the RTE Act, 2009. However, according to Mr. Jha,
the said plea is contrary to the plain reading of Section 7 of the RTE Act, 2009 inasmuch as the
Sarva Shiksha Abhiyan scheme which was started much before the RTE Act, 2009 was enacted by
the Parliament and the funding therein was much higher than the present funding. He stated that
Samagra Shiksha Abhiyan is not limited to elementary education as provided under Section 3 of the
RTE Act, 2009 and in fact deals with all the branches of education. He contended that the Union of
India does not have the authority to spend the money collected (as education cess and otherwise) for
elementary education on higher education and if the defense of respondent no.2 is accepted, it
would render the RTE Act, 2009 redundant.
25. Mr. Ramesh Singh, learned standing counsel for respondent no. 1 submitted that Article 21A is a
unique article inasmuch as it creates a new fundamental right as opposed to other Articles under
Part III of the Constitution of India which protect pre-existing Rights.
26. He submitted that State in Article 21A includes the State Government as well as the Central
Government and local authorities. He stated that the law giving effect to Article 21A is the RTE Act,
2009, which is a Central legislation.

27. He elaborated upon the Scheme of the RTE Act, 2009 and submitted that: -
i. Heart of Article 21A is Section 3, which contemplates Right to free and compulsory
education' to all children between the ages of 6-14 years viz-a-viz their elementary
education. ii. Section 3(2) discusses the scope of free' education and contemplates
that there should not be any financial barrier of any kind, which can have the effect of
preventing a child from getting education.
iii. Section 12 provides a scheme for certain obligations of the State to be passed on to
the private unaided schools and the extent thereof.
28. Learned standing counsel contended that even though Section 3 creates corresponding
obligation, on both the State as well as the private unaided schools, to provide free and compulsory
education, yet the manner of discharge of this obligation is for the respective private schools as well
as the State government to decide. He clarified that the said freedom is subject to fulfillment of
certain minimum criteria prescribed under the RTE Act, 2009. He submitted that the minimum
criteria apart from being envisaged in paragraph 3(a) of the Objects and Reasons, is set out in
Section 8 read with the Schedule to the RTE Act, 2009 (for Private Schools the corresponding
Provision being Section 19 read with the Schedule) as well as Sections 23, 24, 25 and 29. Moreover,
he stated that the said essential norms and standards have to be read keeping in mind that the Act
contemplates a "No Detention Policy" (Section 6 read with Section 30).
29. He pointed out that there are about 1750 private unaided schools in Delhi, out of which about
1300 schools have fee ranging between Rs.500 to Rs.1,000 per month as opposed to the top private
unaided schools where the fee ranges between Rs.10,000 to Rs.15,000 per month, whereas the per
child expenditure in government schools for the purpose of Section 12(2) for the year 2018-2019
stood at Rs.2,250 per month. He stated that due to market forces the private unaided schools
started imparting education through online digital means. He contended that due to differential fee
structure, the method, manner and mode of education is different in different schools.
Consequently, he submitted that the method and manner of imparting elementary education need
not be similar or identical in all schools.
30. Insofar as the State Government is concerned, he stated that during the pandemic they have
started the teaching activities in their schools through a combination of strategies using digital
device and support of parents and School Management Committees (hereinafter referred to as SMC)
as mentioned in the Circular dated 02nd July, 2020. He further stated that the said circular has
been supplemented by another circular dated 13th July, 2020 whereby telephonic instructions have
been directed to be given by the teachers to the students. Since the Circulars dated 02nd July, 2020
and 13th July, 2020 were extensively relied upon by learned Standing counsel for GNCTD, the
relevant portion of the same are reproduced hereinbelow:-
A. CIRCULAR DATED 02nd JULY, 2020 Subject: Teaching Learning Activities for July 2020 As per
the circular No.DE.23/(08)/Sch. Br/2020-21/414 dated 30/6/2020, the schools shall continue to
remain closed till 31/07/2020. However, the teaching learning activities for the students of the

Govt. schools under Directorate of Education shall commence, using alternate strategies, from the
first week of July 2020. It is important that the academic loss of the students is minimized.
A plan of action in this regard has been worked out for the students of classes KG to 12 through a
combination of strategies using digital device and support of parents and School Management
Committees.
All classes between KG to XII have been divided into three cohorts to follow three distinct strategies
to support the learning of students in these classes. These are as follows:
Cohort 1: KG to Class VIII Daily syllabus agnostic worksheets with content and questions/activities
that will promote Reading, Writing, Understanding, Basic Numeracy and Happiness among
children.
Daily one worksheet with questions/tasks/activities in a maximum of one page.
In sub groups:
For classes KG to II For classes III to V For classes VI to VIII Through these
worksheets, the teachers are expected to stay connected with their students and
support their learning.
xxx xxx xxx
Mode of implementation:
For Cohorts 1 and 2:
All Heads of Schools must ensure that all Class Teachers have updated the WhatsApp
group of parents/students in their respective section. They must separately maintain
a list with numbers of parents on WhatsApp group and those that are not.
Preferably two WhatsApp groups must be created by each class teacher - one for Admin only where
only the class teacher can post the worksheets and message and other where children/parents can
respond.
A team of DoE teachers from Core Academic Unit, Mentor Teachers and Primary branch shall
develop/shortlist single page worksheets for classes KG to X.
These class wise and date wise worksheets will be sent by IT branch to all HoS and two other senior
teachers of each school on every Saturday of the week through WhatsApp. Worksheets for the next
one week would be sent at one time.

The HoS, assisted by the two other teachers (one TDC and one Computer Science Teacher) must
ensure that all respective class teachers receive the worksheets for their classes as soon as they
receive it from the IT branch.
Between Monday and Saturday (irrespective of public holiday or otherwise), the concerned Class
teacher must send the worksheet day-wise to students in their WhatsApp group alongwith audio
message explaining how it has to be done with children at home.
For parents who are not in WhatsApp group, the concerned class teacher is required to make a
phone call to each such parent and invite him/her to school at a mutually convenient time and date
to collect the worksheets for their child. Interactions with parents be conducted in school following
the social distancing protocol and not more than 5 parents be called together at any given time.
When the parent comes, the class teacher should give a print out of the worksheets for the entire
week and explain what needs to be done.
When the child completes the assignment in their note book or any plane sheet or any audio/video
message, the parents should assist the child to take a picture of the sheet or audio/video and sent it
back to their class teacher. The teachers must give brief feedback to the child with positive message.
Similarly, those parents who have physically collected the worksheet should be invited next week to
collect the new worksheets and return the previous ones with child's work to the class teacher. The
teachers must congratulate parents and their child for completing the assignment.
The class teachers may also take the help of SMC members to contact the parents and seek their
help in getting the children engaged with their teachers in teaching learning activities.
xxx xxx xxx
General Instructions:
All Heads of schools are:
Authorized to call teachers of their school as per requirement and assign such task which cannot be
done from home, maintaining the protocol of social distancing. Required to assign the section of a
teacher to any other teacher in case the previous class teacher is not available due to COVID duty or
otherwise.
Directed to make available adequate number of copies of worksheets to the class teachers that they
can provide to the parents who are not on WhatsApp using SMC/Examination fund.
Required to ensure that all their class teachers (KG to Class X) maintain weekly record in the
following template:

xxx xxx xxx All DDEs (District/Zone) are directed to review/monitor the coverage and effectiveness
of remote teaching learning approach on a weekly basis. B. CIRCULAR DATED 13th JULY, 2020 In
view of the gravity of COVID-19, Directorate of Education, Govt of NCT of Delhi issued directions
vide Circular no.DE/5/260/digital/Online classes/Exam/2020/638-643 dated 2.7.2020 for
compliance by the heads of Govt. Schools regarding Teaching Learning Activities for classes KG to
XII for minimizing the academic loss of the students during the academic session 2020-21.
Further, it is a comprehensive effort and responsibility of all the stakeholders to stay connected with
every student through regular follow up to know what they are doing to support their learning at
home during COVID-19 Pandemic and also to extend all possible help that the students may require.
Accordingly, all the Heads of Schools are hereby advised to engage the willing Guest teachers and
Contract teachers wherever required for the aforementioned on-line teaching learning activities. All
such engaged teachers shall be treated as on duty and will be paid as per norms.
This issues with the prior approval of the Competent Authority.
31. He submitted that the aforesaid method adopted by the GNCTD for imparting curricular
education to its school children in the present scenario is effective, satisfactory and good enough to
cover the minimum required obligations inasmuch as: -
i. The process under the said circular lays down the structure of teaching/learning
and involves using daily syllabus agnostic worksheets prepared by a team of DoE
teachers from core Academic unit, Mentor teachers and primary branch.
ii. In the first instance, an audio message would be sent on the WhatsApp of the
parents explaining the contents and the associated concepts involved in the
worksheet; iii. In cases, where the parents do not have the facility of accessing the
worksheet and the audio message through WhatsApp, they are to physically approach
the teacher with the child in their respective schools where the worksheet would be
handed over and the contents thereof with associated concepts involved in the said
worksheet would be explained in person;
iv. Thereafter, there is constant one to one oral interaction (through telephone)
between the teacher and the child to check, ensure and explain, if needed, the concept
in the worksheet to the child and only thereafter the child would be asked to do the
assignment. The whole process is a two way dynamic and real-time process, which
the students and DoE teachers are familiar with inasmuch as the said process was
being followed in normal times also during summer and the supplemented learning
material called PRAGYATA'; v. As the aforesaid approach requires greater
involvement of teachers to assist in the learning of students, the DoE issued a circular
dated 13th July, 2020 to provide adequate reinforcement in form of guest/contract
teachers. vi. Once the worksheet is completed, the students would send them back to
the teachers through WhatsApp after scanning the same or hand them over in

person; which are then evaluated and comments/ feedback are shared;
vii. The Minister of Education as well as other officers conduct reviews at zonal level
to ensure that the aforesaid personalized attention is given to the children.
viii. Moreover, in the recent times the implementation of the overall teaching /
learning process in the government schools has been of a very high standard as has
been reflected in the results of the students passing out of government schools. ix.
There have hardly been any dropouts of the students in Government Schools as it has
consistently maintained its percentage both in the pre-primary to 8th standard as
well as in pre-primary to 12th standard. Pertinently, the total number of students in
the academic year 2019-20 in the Government and Government aided schools was
approximately 8 Lakhs in pre- primary to 8th standard and approximately 16.5 Lakhs
in pre- primary to 12th standard.
32. Learned standing counsel emphasized that the obligations of the State in the present scenario
have to be viewed keeping in mind the extraordinary circumstances of the pandemic. On the point of
methods adopted by the Private Unaided schools as well as by the GNCTD schools, he contended
that:-
a. The best of the virtual and / or online classroom studies can never be a substitute
for a physical classroom and therefore, there would be an overall compromise across
the board in level of quality of imparting of education including achieving all the
prescribed minimum standards in the present scenario from the days of the physical
classroom;
b. The minimum obligation as contemplated under Section 3 of the RTE Act, 2009
has to be seen in the light of the present unique circumstances and not the
obligations as contemplated under the Act when physical classroom dissemination of
instructions was happening;
c. The general endeavor and approach by all the stakeholders is to minimize the loss
of learning as much as possible;
33. He contended that an inherently intertwined facet of the meaningful fulfillment of obligation
under Section 12(1)(c), particularly in light of Section 3 of the Act, is that EWS/DG children should
not be discriminated on any grounds that would prevent them from pursuing and completing
elementary education. He emphasized that the enactment proscribes intra- class discrimination of
children. He relied upon Section 8(c) of the RTE Act, 2009 and Rule 8(3) of the Delhi RTE Rules,
2011 to supplement his submission. He contended that any kind of intra-class discrimination would
indisputably result in dropouts of such children. He stated that equipment with minimum
configuration must be provided to EWS/DG students in a class where Online Education is being
imparted as without such gadget/equipment dissemination of education would not be possible and
it would operate as a financial barrier.

34. Mr. Ramesh Singh stated that even though the DoE did not regulate the manner of adoption of
dissemination of instructions through online learning by various Private Unaided Schools, yet as it
received complaints which showed that within such private unaided schools there was
discrimination between the 75% fee paying students and 25% EWS/DG students viz-a-viz access to
online learning inasmuch as the EWS/DG students were not able to access the said services on
account of non- availability of means / equipment to such students by the schools, the DoE issued
circular dated 29th April, 2020 whereby it directed such schools to ascertain whether all EWS/DG
students are able to avail of online learning facilities, why any EWS/DG students are not able to do
so, and if shortcoming is on account of lack of equipment/ internet connections then such schools
were duty bound to ensure that such facility is made available to EWS/DG students.
35. He also submitted that even though the present circumstances had not been specially
contemplated under the provisions of the RTE Act, 2009, yet the scope of Section 3 as well as
Section 12(1)(c) has to be construed in accordance with the principle of dynamic interpretation. In
support of his submission, he relied upon the judgment in Senior Electric Inspector & Ors. vs.
Laxminarayan Chopra & Anr., (1962) 3 SCR 146.
36. He submitted that Section 12(2) of the RTE Act, 2009 provides for reimbursement of
expenditure incurred by such school, which is not of the actual amount incurred by the school, but
an amount that the Government incurs per child in their school for imparting elementary education.
He emphasized that in terms of second proviso to Section 12(2), in case of those schools which are
situated on government land, even the prescribed limitation of reimbursement is confined to only
5% out of the said 25% of EWS/DG students.
37. He further stated that the tuition fee which is charged from the students in case of physical
classroom studies, apart from covering salaries, also covers the cost spent towards establishment as
well as towards curricular facilities like library, lab, science fee, computer fee, examination expenses
etc. Consequently, according to him, the identical tuition fee that is paid by the student, for
attending virtual classroom, would clearly and necessarily include the cost incurred by the schools
for providing the aforesaid equipment (a tool for dissemination of instructions) to the EWS/DG
students. In support of his submission, he relied upon the judgment of this Court in Delhi
Abibhavak Sangh vs. Union of India -
2002 (62) DRJ 818 (DB), wherein the heads for fixing tuition fee have been discussed.
38. He contended that the schools are saving and not utilizing the entire tuition fee as they are not
providing various curricular activities in the present COVID time, i.e. library, lab, science fee,
computer fee, as well as examination expenses, etc. He pointed out that upon examination of fee
statements filed by private unaided recognized schools, it has been found that expenditure on salary
and establishment ranges between 40% to 70% with the average figure being around 60% of the
tuition fee charged by the schools. Therefore, he stated that on the said account also, there are less
significant additional expenses, over and above what is already collected as tuition fees, which the
schools would incur for performing their present obligation.

39. In any event, he submitted that even if the expenditure for the schools exceeds the tuition fee
amount, then also the schools cannot shrug their statutory obligations simply because performance
of such obligation has become onerous.
40. Learned standing counsel submitted that assuming arguendo, if the cost of such equipment is
not a part of the tuition fee, then also reimbursement of such expenses under Section 12(2) of the
RTE Act, 2009 would be limited to the additional expenditure incurred per child in Government
Schools on account of implementing its obligations of distant / digital dissemination of instructions
in terms of circulars dated 2 nd July, 2020 and 13th July, 2020.
41. He further submitted that as per Section 7(1) of the RTE Act, 2009, providing funds for carrying
out the provisions of the Act is a concurrent or joint responsibility of the Central Government as well
as that of the State Government. He stated that in terms of Section 7(2) read with Section 7(3),
Central Government is required to grant approval qua expenditure estimate (both capital and
recurring) for implementing all the provisions of the Act. He stated that such estimate would
necessarily incorporate the approved budget of the State (given the fact that such exercise is done
with the consultation of the State Government). According to him, the Central Government is to
determine what percentage of such expenditure could be borne by the Central Government and post
thereto, provide the State Government, as grant-in-aid of revenues after determining the figures of
such grant-in-aid based on the said percentage. In any event, he contended that under Section 7(4),
the Central Government is obliged to initiate necessary steps for reference to Finance Commission
to provide additional resources to the State Government to enable it to pool in their share of the
fund for carrying out the provisions of the Act.
42. He admitted that even though sans the aforesaid exercise, State Government is still responsible
to provide its share of funds, yet the said provision nevertheless recognizes the primary
responsibility of the Central Government to ensure necessary support to States in genuine cases so
that the responsibility/ obligations under the Act are implemented. Consequently, according to him,
the Central Government plays the principal role and is the primary mover for arranging of funds for
ensuring that the obligations of the State Government are met. In support of his aforesaid
submissions, he extensively relied upon the following:-
i. 213th Parliamentary Standing Committee Report on The Right of Children to Free

and Compulsory Education Bill, 2008: as, it recognizes that the expenditure towards
elementary education is not just confined to financial requirement under Sarva
Shiksha Abhiyan; on the contrary there will be additional enhanced cost of making
elementary education a fundamental right. ii. Lok Sabha Debate on the Right of
Children to Free and Compulsory Education Bill, 2008: As per the statement of the
introducer of the Bill, this is a national enterprise and this has nothing to do with the
State Government or the Central Government and that the primary responsibility of
the financial obligations is with the Central Government and the Sarva Shiksha
Abhiyan norms are to be harmonized with the present enactment.

iii. Rajya Sabha Debate on the Right of Children to Free and Compulsory Education
Bill, 2009: As per the statement of the introducer of the Bill, it is the fundamental
right of a child to get education and there is no way in the world that we don't have
finances to implement it.
43. He submitted that the aforesaid documents, especially the statements of the introducer of the
Bill, are relevant for the purpose of interpretation of the provisions of the Act as held by the
Supreme Court in Commissioner Of Income Tax v. Meghalaya Steels Limited, (2016) 6 SCC 747.
44. In view of the foregoing submissions, he argued that the stand taken by the Central Government
- respondent no.2 in its counter affidavit i.e. the reimbursement of the expenditure incurred by the
State under Section 12 would have a maximum ceiling of 20% of the total AWP & B approved by GoI
for the State / UT under the Samagra Shiksha Program flies in the face of their otherwise statutorily
contemplated responsibility for providing funds under Section 7 of the RTE Act, 2009 as well as the
Central Governments stand in paragraph 7 of their counter affidavit, wherein they have stated that
their existing funds sharing pattern is 60:40 for all the States.
45. He emphasized that while as per recommendation of the 14th Finance Commission of
Government of India, the devolution of funds to the States, have increased to 42% of the Net Union
Tax receipts, which in case of Delhi would work out to be around Rs.50,000 crores (42% of about
Rs.1.25 lakh crores), whereas Delhi gets a mere Rs.325 crores as its share in Central tax, which
figure has remained constant/unchanged since 2001- 2002. Hence, according to him, in such a
scenario, it becomes the prime responsibility of the Central Government to ensure that in a genuine
case like the present one, the State is given additional necessary support so that their
responsibility/obligations under the RTE Act, 2009 are implemented.
ARGUMENTS ON BEHALF OF RESPONDENT NO.2 /UOI
46. Mr. Harish Vaidyanathan Shankar, learned counsel for the respondent no. 2 submitted that the
RTE Act, 2009, which came into force on 29th August, 2009 is an Act which provides free and
compulsory education to all the children of the age of 6-14 years.
47. He relied upon his counter affidavit filed to contend that various schemes and measures have
been put in place by respondent no.2 to provide and promote elementary education all over India.
He stated that the Central Government has taken numerous steps keeping in view the welfare of the
children and their education. He submitted that the said steps are all part of the concurrent
responsibility of the Central Government under Section 7 of the RTE Act, 2009 and this has been
done all over the country. According to him, to that extent the Central Government is cognizant of
and has discharged its duties as required under the various laws, including the RTE Act, 2009.
48. He contended that the Central Government is also carrying out its obligations as per the RTE
Act, 2009 in respect of the schools it administers, namely Kendriya Vidyalayas. He stated that
Kendriya Vidyalayas' students have access to Online Education and those who do not have laptop or
phones are imparted education through TV channels, contact programmes, worksheets and

assignments sent by post. He submitted that different means can be adopted to teach different
students in the same class. According to him, the issue of discrimination amongst students would
only arise if a student is not given access to education. He relied upon his Additional Affidavit to
highlight the various steps taken by the Central Government in its schools, namely the Kendriya
Vidyalayas. The relevant portion of the additional affidavit of respondent no.2-UOI is reproduced
hereinbelow:-
4. The status of the Central Government Schools and the minimum standards
prescribed for the purpose of imparting online education may be read as under:-
Kendriya Vidyalaya Sangathan:-The Delhi Region, Kendriya Vidyalaya Sangathan has

total 69 (46+23) Kendriya Vidyalayas including 23 KVs running in second shift also.
Total 106905 students are studying from class II to XII, and as per a survey
conducted by the Sangathan, total 82798 students have devices as per requirement
and 16529 students have limited access to devices. Thus, Overall Total 99327
students (92.91%) have access to devices. Initially the classes started with the
available devices with the teachers, parents and students. Wherever limited devices
were available the following steps were taken:
i. Meeting with parents and, working out timetable so that limited devices can be
used optimally by all the children in the family.
ii. Where no devices were available, the students were contacted on phone. They were
provided details to join classes through TV channels live Swayam Prabha DTH
Channel etc. The measures taken by Delhi Region for Online classes:
a) SWAYAM PRABHA: Using NIOS platform, the KVS started the schedule lessons-
recorded and live programmes of NIOS for Secondary and Senior Secondary Classes
from 7th April 2020. The question answer session was taken by teachers through live
chat, skype.
b) Facebook: Live Classes were conducted by teachers.
c) YouTube: Teachers uploaded Videos lessons and informed students through

twitter and whatsapp groups
d) Regional office, KVS, Delhi Region started its own Channel. Subject wise best
teachers were identified and were assigned with the responsibility of live classes.
After all the above efforts, it was felt that a common platform will be a great solution
to conduct, track, monitor the Online classes and G-Suite Education platform was
hired and Regional Office, Delhi registered its domain.

After getting a common platform, all the students classes II to XII, Principals,
Teachers, Vice Principals, Head Masters were registered. Unique ID and password of
each individual were created in G-Suite with Security features in place.
Three days online training of teachers was conducted to familiarize the use of
platform on G-Suite platform wherein:
a. Live classes are conducted b. Teachers uploaded assignments c. Assignments

solved by students were uploaded d. Online Evaluation was done by teacher To
reduce inhibitions of teachers, a group of techno savvy teachers was formed who
helped other teachers to solve teething troubles in handling the technical issues. It
motivated teachers and to prepare lessons to be taught online.
Presently, around 98% students strength are fruitfully attending the Online Classes.
The online supervision of classes is being done by the Assistant Commissioners and
Deputy Commissioners. Panel Inspection of Classrooms/Vidyalayas is also being
experimented now. Parent Teacher Meeting is also being conducted. Flexi timings
have been assigned to teachers to conduct Classes as per the availability of devices.
5. Measures taken by KVS to deal with issues of digital divide with reference to
accessibility of online education of children during the COVID-19 Pandemic
1. Every school has taken responsibility to work out the accessibility issues of each
individual student. This was done by:-
a) Mapping the availability/non-availability of devices for each student.
b) Organising online Parent Teacher Meeting to apprise parents about the mode of
conduct of online classes and also to seek their support in smooth and efficient
transaction of the content. Parents who were not able to connect through online
mode were connected telephonically for inputs regarding the possible ways and
means to connect with their wards for teaching learning.
c) Exploring avenues for making provisions for providing devices through local
community and management help, CSR, NGO's etc. Various NGOs & Alumni have
donated 112 mobile phones to students belonging to EWS.
d) The following efforts are made for those children who were not reachable at all:
Schools prepared photocopies of sets of self-explanatory notes which were sent to the
students via courier. Many students received it and are using them, but many
couriers were returned due to non-availability of the parents at the address.
Peers were roped in to find out the location of these students.

Parents of other students were also involved in finding out the whereabouts of those
students with whom the contact could not be made.
As on 01.08.2020, total enrolment of students was 106905 (Admission process is still

going on). 3042 students could not be contacted as on 15.07.2020. However, after
concerted efforts by the schools, now only 2614 students have remained not
contacted.
e) Further, the following efforts are made for those children who have been contacted
but do not have devices:
These students were encouraged to use other Live Resources and Learning portals
such as DIKSHA Portal, NCERT Official YouTube channel to ensure continuous
learning.
The term Phone-pool (Sharing of Device) was introduced for ensuring attendance in
Live Online Classes.
Students were asked to watch DTH channels of SWAYAM PRABHA for their
continuous learning on TV.
Teachers are in contact with the students, guiding them on self-learning and clearing
their doubts on content either from books or after watching various educational
channels/portal etc.
Efforts made to tap other options for donations or devices like Alumni, NGOs, CSR
etc. Worksheets and Handouts were prepared in all subjects and delivered to the
students at their home.
Content material was also made available in pen drives and CDs where there was
poor internet connectivity.
Question and Answers were send through SMS.
Community Teaching maintaining Social Distancing was undertaken.
Guided Peer Learning for students staying in the same locality.
Use of Asynchronous mode of transaction such as: Free e-resources available on

various platforms like NROER, DIKSHA, SWAYM PRABHA, NPTEL, e-pathshaala,
NCERT NIOS portals, Khan Academy are being used.
f) Alternative Academic Calendar prepared by NCERT was made available to all the
students. Queries/doubts of students were addressed through SMS/phone.

g) Feedback from Parents/Teachers/Students regarding conduct of classes was taken

for necessary intervention required for further improvement.
h) Counselling session on mental well being of students was conducted.
i) Viable means for realistic evaluation for assessment of learning was undertaken.
49. He emphasized that the Central Government is ensuring that EWS/DG children are not deprived
of education and provided access to education through Television Channels, All India Radio, the
Internet, etc.
50. Learned counsel for respondent no.2 contended that while online education is interactive, it is
no ones case that it is the only mode or mean for imparting education. He stated that various State
Governments in India and various countries world-over have been successfully using Television and
the Radio to provide access to education and to ensure the continuity of childrens education. In
support of his contention he relied upon a World Bank Report regarding some of the means used by
various Countries (https://www.worldbank.org/en/topic/edutech/brief/how-countries-are-
using-edtech-to-support-remote-learning-during-the-covid-19-pandemic) and a UNESCO Study
which had looked into the manner in which Television and Radio had been found to be extremely
helpful (https://en.unesco.org/news/learning-through-radio-and television-time- covid-19).
51. He submitted that the Supreme Court in various cases such as Society for Unaided Private
Schools of Rajasthan (supra) and Pramati Educational and Cultural Trust (Registered) (supra) has
held that the RTE Act, 2009 provides for access to free and compulsory education and the removal
of barriers to access the same. He further submitted that once the entry barriers are removed, the
obligation under Section 8 has to be necessarily read in a manner such as to mean that the Child is
"not discriminated against and prevented from pursuing and completing elementary education on
any grounds" and this can be achieved by various means. He contended that there could be different
modes and means of providing access to education within a class depending upon the circumstances
of a child i.e. one child without access to a device could study through a radio broadcast, whereas his
classmate who has access to a device could attend online classes. In support of his contention, he
relied upon one of the examples given in PRAGYATA issued by Department of School Education &
Literacy, Ministry of Human Resource Development, Government of India and prepared by
National Council for Education Research and Training (NCERT). The relevant portion thereof is
reproduced hereinbelow:-
"Online Learning for Class IV students An Exemplar PLAN:
Lesson Plan for the following is prepared by the teacher in great details REVIEW:
Teacher conducts a brief survey with the children via mobile about their access to
digital devices and finds that:

1. 15 Households have a Television, Smartphone with internet connectivity and also a

Laptop.
2. 10 Households have a Smartphone with internet connectivity and a Television but

no Laptop.
3. 4 Households have a basic mobile.
4. 1 Household does not have even a mobile.
ARRANGE:
After this survey teacher may make arrangements in the following manner.
Giving immediate attention to children belonging to households at (c) and (d). For
children belonging to households at (c), teachers may plan calls early morning on the
mobile as there is a possibility that the parent who will go out for work may take the
mobile along with him/her. Teachers select a theme (Example - a theme from EVS,
i.e. family).
So, she/he will call the parent or student and ask them to discuss with their family
members (their age, what work they do, etc.).
For a child belonging to a household at (d), teachers may explore contacting them via
the child's friends. After getting the contact of a student residing nearby, the teacher
may explore communication channels with the household at (d) such as identifying
his/her accessibility to a mobile belonging to a neighbour. The teacher will guide the
parents, child or guardians.
For children belonging to households at (a) and (b), she may plan to call them via
Google Hangout or WhatsApp calls, etc. Teachers may create three groups of eight
students each, and guide on the same theme- family' by asking them to discuss and
make a chart as discussed above........
52. He stated that in the present circumstances, the Central Government has taken quick and
responsive steps to ensure that education is seamless, continuous and available to all students.
53. He contended that the obligations of the Government schools cannot be equated or compared
with the obligations of the Private Schools inasmuch as Government schools, though mandated to
take 25% of their strength as EWS students, in fact, cater to far higher number of students from the
EWS categories. He stated that this is because of the higher affordability of the school, due to much
lower fees being charged, as compared to unaided private schools. He stated that even though the
private unaided schools are far lesser in numbers, the Central Government caters to a larger number
of students and carries out its obligations and does not do so for profit. He emphasized that the

Central Government has already taken out a number of initiatives for children in general across
India without any discrimination or distinction to ensure that education is continuous and seamless
and access to the same is ensured across the board.
54. Mr. Harish Vaidyanathan Shankar submitted that the present Petition is regarding online means
of education and provision of devices to EWS/DG children or the 25% of the children that are
mandated under the Act to be admitted by the schools as per Section 12(1)(c) of the RTE Act, 2009
and the various obligations (as outlined in Sections 12 and 8) to be undertaken by Schools and the
Appropriate Government (as defined under Section 2(a)(i)(ii) of the RTE Act, 2009). He stated that
as per the Act, the primary responsibility in respect of access to the free and compulsory education is
on the private unaided Schools as per Section 12(1) and under Section 12(2) such schools will have
to be reimbursed for the same by the State Government as that is the prime focus of the Act itself. In
view of the same, he contended that the scope of the present petition need not extend to Section 7,
as it is nobodys case that reimbursements have not been given. He submitted that in the operability
and the execution of the RTE Act, 2009, Sections 8 and 7 operate in different spheres and in fact, it
is only Section 8 that primarily delineates and fixes the complete responsibility on the Appropriate
Government, which is the respective State Government. He emphasized that a bare perusal of
Section 8 of the RTE Act, 2009 reveals that it is the Appropriate Government that shall provide not
only free and compulsory elementary education, but also, "Learning Equipment". He contended that
the issue regarding the share of funds, which has been mentioned by the State Government, is
completely unwarranted and unnecessary as the RTE Act, 2009 lays particular stress on the duties
of Appropriate Government. He submitted that in the conspectus of the various provisions of the
RTE Act, 2009 it was clear that although the Act so promulgated is a Central Act, yet its operability
and applicability is substantially centric to "Appropriate Government".
55. He contended that RTE Act, 2009 applies in a generic state of affairs and not to any exigent
situation such as the current Pandemic, which from every perspective is a wholly unforeseen and
extraordinary situation. He extensively relied upon the measures outlined in his Counter Affidavit to
argue that the Central Government has already taken measures to deal with the Pandemic and its
effect on education in India. He also stated that the Central Government has, as a wholesome
all-encompassing measure, provided for a staggering sum of Rs.20 Lakh Crores to cater to any fall
out of the Covid 19 Pandemic. He emphatically stated that to now read Section 7 in the manner as
sought by the respondent No.1, over and above the obligations already performed and in addition to
the measures already taken in this respect by the respondent No.2, would tantamount to a palpable
erroneous reading of the Act and its true applicability. He lastly contended that the Central
Government cannot be further burdened in the manner as has been contended by the respondent
No.1 in its counter affidavit.
ARGUMENTS ON BEHALF OF NORTH MUNICIPAL CORPORATION OF DELHI-RESPONDENT

NO.4
56. Mr. Akhil Mittal, learned counsel for respondent no. 4 stated that there are about seven hundred
primary schools under the jurisdiction of respondent no.4, who are providing free education to all
its students in classes 1 to 5 in terms of the RTE Act, 2009.

57. He pointed out that respondent no.4 has issued circular dated 9 th April, 2020 to provide Online
Teaching Learning Activities through WhatsApp groups for students of about seven hundred schools
run by them, in addition to twenty one aided and one hundred eighteen recognized private primary
schools. He stated that in continuation of previous circulars, respondent no. 4 has also issued
another circular dated 7th July, 2020 to all Head Mistresses/ School in charge of MPL/ MPL aided
and recognized schools to remain present in their respective schools for distributing worksheets
with recorded videos to parents whose children are not able to access WhatsApp and further request
the parents to submit the worksheets on weekly basis. He stated that private unaided recognized
schools are also following the aforesaid guidelines.
58. He stated that the respondent no.4 had also written a letter dated 24th April, 2020 to CEO,
Prasar Bharti Broadcasting Corporation for allotting one hour airtime on Doordarshan Channel
(Delhi region) for providing online education through television mode and in response to the said
letter, Joint Director NCERT has launched PM eVidya program containing broadcasting/
telecasting/ podcasting all e-contents (over TV, radio and internet) of all subjects from Class 1 to 12.
He further stated that the twelve DTH channels, each catering to one class, will be launched in
September, 2020 and in addition to the same, twenty seven radio channels will also be added. He
also stated that in addition to the aforesaid, a separate QR code will be available on Diksha website
wherein the recorded videos, worksheets and entire contents shall be available for downloading.
59. He emphasized that the respondent no.4 is trying its level best to assist the students through
WhatsApp etc. as well as through offline means, so that each child has free access to education. He
pointed out that parents and children of EWS category have raised no grievance with respondent
no.4.
60. Mr. Akhil Mittal lastly stated that considering the relief claimed in the present petition, an
approximate sum of Rs. 312 crore would be required by respondent no.4 for supplying basic gadgets
to provide interactive online classes to all the students under its jurisdiction alone.
ARGUMENTS ON BEHALF OF SOUTH DELHI MUNICIPAL CORPORATION - RESPONDENT

NO. 5 AND EAST DELHI MUNICIPAL CORPORATION-RESPONDENT NO.6.
61. Mr. Sriharsha Peechara, learned counsel for respondent no.5 and Mr. Harish Kumar Khinchi,
learned counsel for respondent no. 6 stated that they have been implementing policies and circulars
being followed by North Delhi Municipal Corporation. However, Mr. Sriharsha Peechara, learned
counsel for respondent no. 5 admitted that only fifty percent of the students are attending classes in
primary schools under the jurisdiction of respondent no. 5. He stated that respondent no. 5 is trying
to collect data of fifty percent missing students. He assured this Court that worksheets/assignments
shall be provided to the fifty percent students who had not been attending the classes in the recent
past.
ARGUMENTS ON BEHALF OF NEW DELHI MUNICIPAL COUNCIL -
RESPONDENT NO.7

62. Ms. Noopur Singhal, learned counsel for respondent no.7 stated that the schools under the
jurisdiction of respondent no.7 are following the Pragyata Guidelines of Central Government for
imparting education and they are using means like Google Meets, WhatsApp, T.V., Radio etc. She
stated that the Navyug schools which come under the jurisdiction of respondent no. 7 have a 70%
reservation for EWS category students.
ARGUMENTS ON BEHALF OF RESPONDENT NO.18
63. At the outset, Mr. Sunil Gupta, learned senior counsel for respondent no.18 stated that the RTE
Act, 2009 does not deal with the unforeseen, unanticipated and unprecedented situation prevailing
today due to Covid- 19 pandemic. He stated that neither the Covid-19 pandemic nor the physical
closure of classroom in neighbourhood school or the concept of online education was at the back of
the mind of the Parliament at the time of enacting the RTE Act, 2009. He submitted that as the
aforesaid outbreak of a pandemic and development in technology had not been visualized by
Parliament while passing the RTE Act, 2009, this Court cannot apply the RTE Act, 2009 to such a
situation.
64. Learned senior counsel for respondent no.18 stated that during the present COVID-19 crisis,
educational activity under the RTE Act, 2009 and Delhi School Education Act and Rules, 1973 is
dysfunctional. He submitted that RTE Act, 2009 contemplates providing of education by a
neighbourhood school in a physical classroom and not online education by digital means. He
contended that during the pandemic, online education is being provided as a social service by
certain private unaided schools. He emphasized that the said schools have not done so because of
any legal or statutory obligation cast on them.
65. He also submitted that even the Government cannot enlarge the scope of the RTE Act, 2009 by
any circular by executive or Departmental Instructions to include online education or learning
materials, much less electronic devices. In support of his submission he relied upon the judgment of
this Court in Forum For Promotion Of Quality Education For All vs. Lt. Governor of Delhi & Ors.,
W.P.(C) 202/2014 and Action Committee Unaided Recognized Private Schools vs. Directorate of
Education, W.P.(C) 448/2016.
66. He emphasized that there is no automatic or all-embracing Fundamental Right to free and
compulsory education prescribed under Article 21A as it only provides for a Fundamental Right to
be available to children in such manner as the State may, by law, determine. He submitted that in
Article 21A, the expression manner is distinct from the expression free and compulsory inasmuch as
manner pertains to the method or mode by which education is imparted by any person whereas free
and compulsory describes only the terms of the contractual transaction or service of education
rendered by any person. According to him, other than the manner determined by law made by the
Parliament i.e. physical classroom, there is no Fundamental Right given by Article 21A to any child
and there would be no other legal or statutory right under the RTE Act, 2009. He relied upon the
Statement of Objects and Reasons of the RTE Act, 2009 to contend that the Act provides for the
some kind of education of satisfactory quality in a formal school which satisfies certain essential
norms and standards.

67. He emphatically stated that the RTE Act, 2009, does not contemplate online education as a
manner of education. He submitted that Article 21A and the RTE Act, 2009 provide only for
neighbourhood schools i.e. physical classrooms and not online education. According to him, online
education is not a core and non-derogable facet of Article 21A of the Constitution. He submitted that
if the Court includes online education by way of interpretation, it would unduly expand the scope of
the RTE Act, 2009 even when the legislature has expressed a narrow intent by using the
unmistakably qualifying and restrictive word neighbourhood' before the word school in the most
relevant provisions [viz. Sections 3, 6, 8(b), 9(b), 10, 12 (1)(c) etc.] of the RTE Act, 2009 and
prescribed the essential norm and standard' which a school should possess viz. an all-weather
building consisting of ...classrooms, barrier free access, toilets, drinking water, kitchen, playground,
boundary wall, fencing, library, play material, games and sports equipment etc.' in Section 19 read
with the Schedule so as to limit and prevent any wide connotation of the word education' or the
word school' thereby excluding from the scope of the Act not only hitherto unknown mechanisms
such as Synchronous Face-to-Face Real Time Education, namely, Online Education, but even the
somewhat known practices of Remote or Distance or Digital Education by means of
Correspondence, Television, Radio etc.
68. He contended that whatever manner of education applies for private unaided schools; the same
applies also for government schools and vice versa. He reiterated that the manner of education
determined as a right of a child under Section 3 of the RTE Act, 2009 is education imparted in a
neighbourhood school i.e. in a physical school comprising land, walls, brick and mortar and located
in the local vicinity or neighbourhood of the child and it is this manner of physical neighbourhood
school education which is required by the Act to be imparted on contractual or service terms which
are free and compulsory for every child. He stated that there cannot be two different interpretations
and applications of the Act with respect to online education. He emphasised that as per the scheme
of the RTE Act, 2009, only education in a physical classroom is provided under the statute and other
methods or manner of education (such as online education, TV, Radio, WhatsApp etc.) are not
covered or required or expected to be available as free and compulsory education in either a
government school or an unaided school under the Act.
69. In view of the aforesaid, he submitted that the Court could not evolve a legislative intent that is
not found in the statute by way of a dynamic interpretation. He emphasised that a Court cannot
legislate under the garb of interpretation. In support of his submission, he relied upon the judgment
of the Supreme Court in EERA through Dr Manjula Krippendorf vs. State (NCT of Delhi) and
Another (2017) 15 SCC 133 wherein it has been held as under: -
95. To elaborate, an addition of the word mental by taking recourse to interpretative

process does not come within the purposive interpretation as far as the POCSO Act is
concerned. I have already stated that individual notion or personal conviction should
not be allowed entry to the sphere of interpretation. It has to be gathered from the
legislative intention and I have already enumerated how the legislative intention is to
be gathered. Respect for the dignity of a person, as submitted, has its own pedestal
but that conception cannot be subsumed and integrated into a definition where the
provision is clear and unambiguous and does not admit of any other interpretation...

In certain circumstances, it would depend upon the degree of retardation or degree of

understanding. It should never be put in a straitjacket formula. It is difficult to say in
absolute terms.
xxxx xxxx xxxx xxxx
97. Needless to emphasise that courts sometimes expand or stretch the meaning of a
phrase by taking recourse to purposive interpretation. A Judge can have a
constructionist approach but there is a limitation to his sense of creativity.....
xxxx xxxx xxxx xxxx
139. A reading of the Act as a whole in the light of the Statement of Objects and
Reasons thus makes it clear that the intention of the legislator was to focus on
children, as commonly understood i.e. persons who are physically under the age of 18
years. The golden rule in determining whether the judiciary has crossed the
Lakshman Rekha in the guise of interpreting a statute is really whether a Judge has
only ironed out the creases that he found in a statute in the light of its object, or
whether he has altered the material of which the Act is woven. In short, the difference
is the well-known philosophical difference between is and ought. Does the Judge put
himself in the place of the legislator and ask himself whether the legislator intended a
certain result, or does he state that this must have been the intent of the legislator
and infuse what he thinks should have been done had he been the legislator. If the
latter, it is clear that the Judge then would add something more than what there is in
the statute by way of a supposed intention of the legislator and would go beyond
creative interpretation of legislation to legislating itself. It is at this point that the
Judge crosses the Lakshman Rekha and becomes a legislator, stating what the law
ought to be instead of what the law is.
70. He submitted that Section 7 fixes the financial and other responsibilities for providing the funds
for carrying out the purposes of the RTE Act, 2009 only on the Central and State Governments and
Sections 8 and 9 impose the duty of free and compulsory education only on appropriate
Government and local authorities. Therefore, according to him, Private schools have no such legal
responsibility or duty to provide free and compulsory education and they have to provide the
children with access to education only. He contended that the mode, manner and method of
education could be different in different schools as well as in the same class.
71. He pointed out that the Government of India Guidelines for Digital education PRAGYATA
applicable to all Government and Private schools throughout India and GNCTD / Department of
Education Circulars meant for Covid-19 pandemic period permit different methods of Education:
Online Education, Digital, TV Radio or WhatsApp and Worksheet Telephonic instruction depending
on whether a particular child in the class possesses or does not possess a particular kind of device.
According to him, they divide households with children in schools all over the country into six
categories depending on the availability of 4G, 3G, 2G, Internet, Basic Mobile, TV, DTH, Cable,

Radio, FM etc. devices (gadgets) and connections or no device and no connection whatsoever. The
relevant portion of PRAGYATA Guidelines relied upon by Mr. Sunil Gupta is reproduced
hereinbelow:-
COVID-19 pandemic has led to secure disruptions in normal life, including closure of
schools. It has impacted over 240 million children of the country who are enrolled in
schools. Extended school closures may cause loss of learning. To mitigate the impact
of the pandemic, schools will not only have to remodel and reimagine the way
teaching and learning have happened so far, but will also need to introduce a suitable
method of delivering quality education through a healthy mix of schooling at home
and schooling at school.
While digital or online education cannot replace classroom learning, it has some
advantages. It allows flexible and personalized learning at the speed of the learner
and one can continuously augment and expand content through digital means. The
rapid increase in internet penetration and various government initiatives such as
Digital India campaign have created a conducive environment for moving towards
digital education. This shall be complemented by the recent launch of PM e-Vidya by
the Ministry of Human Resource Development (MHRD), a national campaign which
will unify all efforts related to digital/online/on-air education. This includes,
DIKSHA (one nation - one digital platform), TV (one class-one channel), SWAYAM
(online MOOCS on various topics), IITPAL (platform for exam preparation), AIR
(through community radio and CBSE Shiksha Vanipodcast) and study materials for
differently abled students developed by NIOS. All these areas of e-learning shall be
expanded and developed further in a systematic and unified manner by the MHRD in
a phased manner.
Following guidelines have been developed from the perspective of learners, with a
focus on online/blended/digital education for students who are presently at home
due to lockdown. These guidelines also provide a roadmap or pointers for carrying
forward online education to enhance the quality of education. The guidelines will be
relevant and useful for a diverse set of stakeholders including school heads, teachers,
parents, teacher educators and students.
Digital Education is an evolving area which is primarily concerned with the

teaching-learning-process using digital medium. This has evolved from activities
such as sharing of text resources and students submitting assignments online to
availability of various types of content such as audio, video and multimedia
resources. The continuous advancement in the field of Information and
Communication Technology (ICT) and the internet (with virtually unlimited supply
of digital resources) has made multiple modes of digital education possible......
xxx xxx xxx .......There are two kinds of online learning and teaching that schools will
need to balance based on the feasibility:

a) Synchronous: This is real-time teaching......examples of synchronous learning are

online teaching through video conference (two-way video, one-way video, two-way
audio), audio conference (two way audio) using satellite or telecommunication
facilities.
b) Asynchronous: This is anytime, anywhere learning but not connected on real time,
for example, emails, SMS, MMS, surfing e-content on DIKSHA, listening to radio,
podcasts, watching TV channels, etc.
72. He contended that differential treatment of children for the purposes of online education in
Covid-19 time is not treated by the Government of India Guidelines for Digital Education
PRAGYATA (which has been made applicable by the Directorate of Education circular dated 27th
July, 2020) as discrimination inasmuch as it permits different manners, methods and modes of
education for different children in the same class. He also relied upon the press release dated 3rd
August, 2020 which was issued during the course of the arguments.
73. Mr. Gupta contended that discrimination, if any, is a result of personal supply of equipment by
the parents of 75% of fee-paying schools
- a wholly private transaction. He contended that this was the actual lis projected in the present
petition and the alleged cause of mental trauma in the minds of 25% EWS children. Even so, he
submitted that mental trauma without any legal right is not a legal injury and it cannot constitute
cause of action to approach a Court of law. He stated that it is strange that the 25% EWS children
are being compared with the 75% fee paying children in private unaided schools who are studying at
their own homes and are not even anywhere physically around the 25% EWS children. He
contended that the whole ground of alleged discrimination, inequity, metal trauma etc. is wholly
false, concocted and fabricated.
74. Learned senior counsel for respondent no.18 submitted that private unaided schools are engaged
in the occupation of imparting education, which is their Fundamental Right under Article 19(1)(g).
He submitted that the Fundamental Right to do business also includes the Fundamental Right not
to do certain kind of business, which means that the schools also have a Fundamental Right under
Article 19(1)(g) not to do the business of sale, procurement or supply of laptops, mobiles etc. He
stated that the RTE Act, 2009 provides for imparting education i.e. education in the abstract sense
to connote dissemination of knowledge, ideas etc. as opposed to distributing physical objects. He
pointed out that since the schools do not do such business even for the 75% fee-paying students,
they cannot be compelled to do such business for the sake of the 25% EWS students, whether with
government subsidy, reimbursement or otherwise. According to him, such compulsion violates
Article 19(1)(g) and is not saved by Article 19(6) as no law has been made by the Legislature for
private unaided schools to provide free laptops, phones etc. to EWS students.
75. In view of the aforesaid, he argued that the GNCTDs Circular dated 29th April, 2020 (whereby
respondent no.1 has directed the private unaided schools to provide online learning material to EWS
to students) is unconstitutional, ultra vires, illegal and unenforceable. He submitted that it is

immaterial that the circular has not been challenged by any school inasmuch as an ultra vires and
illegal circular deserves to be ignored by the Court even if a respondent who is confronted with it has
not challenged the same. In support of his submission, he relied upon the judgment of the Supreme
Court in Bharathidasan University & Anr. vs. All-India Council for Technical Education & Ors.,
(2001) 8 SCC 676.
76. Mr. Gupta submitted that in view of the submissions made by respondent no.1, it was evident
that if the GNCTD does not spend on devices there will be no reimbursement for the schools and
since there is no online education with laptops, smartphones, high speed Internet etc. provided by
the GNCTD in its own schools, there is no per child expenditure incurred by the State. Accordingly,
he submitted that the reference parameter required by Section 12(2) is missing and the
reimbursement provision in Section 12(2) is rendered incapable of being applied to any private
unaided school. He stated that in the event the Court finds that the private unaided schools have to
provide devices to EWS students, reimbursement of such expenses on devices and high speed
internet has to be necessarily provided by the GNCTD under the RTE Act, 2009 and any breach of
the said obligation would be violative of Articles 14 and 19(1)(g) of the private unaided schools. He
also relied upon the judgment and order dated 24th April, 2020 passed in Naresh Kumar vs.
Director of Education & Anr., W.P.(C) 2993/2020, whereby a co-ordinate Bench of this Court has
dealt with online education and held that it is not for the Court to arrive at a policy decision, which
involves financial implications.
ARGUMENTS ON BEHALF OF THE HERITAGE SCHOOL -
RESPONDENT NO.14 AND THE INDIAN SCHOOL - RESPONDENT NO.16
77. Mr. Aniruddh Bakhru, learned counsel for respondent nos. 14 and 16 stated that the relief sought
in the present petition needs to be modified because by the time the entire exercise of identifying,
procuring and financing the devices would be complete, physical classes in the schools would start
and such devices would become redundant.
78. He contended that if the schools are burdened with supplying devices to students, they will
inevitably resort to the method prescribed under DoEs circular dated 2nd July, 2020 i.e. education
through WhatsApp and worksheet, which would result in lowering the educational standard and
quality.
ARGUMENTS ON BEHALF OF SANSKRITI SCHOOL - RESPONDENT NO.8
79. Mr. Srijan Sinha, learned counsel for respondent no. 8 stated that it has three hundred twenty
five EWS category students (aged about six to fourteen years) in its school and out of them three
hundred twenty students have access to a device in the form of a mobile or laptop. He further stated
that respondent no.8 had recognized the special needs of students belonging to EWS category and
had put measures in place even before the Government had imposed the lockdown. He listed
measures taken by the Respondent School, which included creating WhatsApp groups for EWS
category students, creating special videos for them to clarify their doubts, and taking regular

feedback from students as well as teachers to ensure doubt removal. He stated that during
lockdown, additional facilities were introduced to aid the EWS category students which included
support WhatsApp groups with parents of EWS category students to communicate all important
instructions, circulars, class schedules etc., counselling sessions to enquire about the well being of
students and telephonic support of teachers i.e. the teachers personally reach out to the parents of
the EWS category students and ask about their concerns and issues they are facing.
80. He emphasized that the respondent no.8 is fulfilling its obligations under the RTE Act, 2009
and going beyond the minimum mandate of the law to ensure that no child is left behind. He stated
that all the EWS/DG category children admitted to its school have access to online education at par
with their fee-paying counterparts.
ARGUMENTS ON BEHALF OF APEEJAY SCHOOL - RESPONDENT NO.11
81. Ms. Yashmeet Kaur, learned counsel for respondent no.11 stated that if devices are given only to
few EWS category students, it would amount to discrimination and therefore, even fee-paying
students are entitled to receive devices. She pointed out that the petitioner has not accounted for the
repair cost that will be incurred in case of a device malfunction or failure. She stated that since the
mobiles/laptops etc. require constant upkeep and are expensive to repair, the said amount has to be
considered also.
ARGUMENTS ON BEHALF OF DPS RK PURAM - RESPONDENT NO.9
82. Mr. Puneet Mittal, learned senior counsel for respondent no.9 contended that since neither
respondent no.1 nor respondent no.2 has clarified what sort of devices they would use in their
schools, there is no standardization of equipment. According to him, this would ultimately lead to
arbitrariness in granting reimbursement to schools.
83. He pointed out that large amounts of money that were recoverable by respondent-school under
Section 12(2) of RTE Act, 2009 are still outstanding with the GNCTD. Details of such outstanding
amounts are given in the following table:-
Summary of Amount Recoverable and Received for EWS Students DPS DPS R.K. DPS DPS Rohini
DPS Total Mathura Puram Vasant Dwarka Road Kunj Amount 10,36,31,400 13,82,32,920
1,15,36,658 2,21,17,944 2,81,25,812 30,36,44,734 Claim/Raised Amount 15,72,432 1,97,91,977
70,05,349 - 9,23,091 2,92,92,849 Received Balance 10,20,58,968 11,84,40,943 45,31,309
2,21,17,944 2,72,02,721 27,43,51,885 outstanding ARGUMENTS ON BEHALF OF AHLCON
PUBLIC SCHOOL -
RESPONDENT NO.15
84. Mr. Kapil Goyal, learned counsel for respondent no.15 stated that in accordance with the
respondent no.15s land allotment deed, freeship is limited to only tuition fee. He pointed out that
reimbursement of about Rs.2 crores on account of tuition fees of EWS students is still pending with

the Government and even a proposal of fee hike has been rejected by the GNCTD.
85. He stated that respondent no.15 has been conducting online classes and about 80% of the EWS
category students are attending the same. He further stated that providing devices to students would
cause financial strain on respondent no.15 and therefore, the GNCTD should directly supply the
same. He, however, pointed out that all hundred per cent (including fee paying and EWS) students
would be entitled to the devices and if any is left out, it would amount to discrimination.
CLARIFICATION ON BEHALF OF GNCTD-RESPONDENT NO.1
86. In rejoinder, Mr. Ramesh Singh clarified that respondent no.1 has two kinds of specified
category schools as defined under Section 2(p) of the RTE Act, 2009 namely: Schools of Excellence
and Rajkiya Pratibha Vikas Vidyalaya. He stated that the Schools of Excellence impart education to
students from nursery to Class 12th and admission in Nursery is done through draw of lots, on the
basis of neighborhood criteria with 25% of total seats for entry class reserved for EWS/ DG category
(including 3% CWSN) and no fee or other expenses are charged from any of the students.
87. He stated that as far as Rajkiya Pratibha Vikas Vidyalaya are concerned, these schools impart
education from Class 6 th to Class 12th only and students of Government/Government aided schools
of DoE, MCD/ NDMC schools and Delhi Cantonment Board Schools who have studied continuously
for 2 years, i.e. class 4th & class 5th and secured minimum 60% marks in class 5th can apply for
admission to these schools in class 6th and the admission is based upon results in the entrance /
screening test. He further stated that since the entry level admission in such schools is in class 6th,
there is no EWS/DG reservation as contemplated in section 12(1) of the RTE Act, 2009 (which
provision is confined to admission in class 1/ pre school stage).
88. He clarified that even in both these schools no fee or other expenses are charged from any of the
students. He pointed out that in present COVID times, impartation of education in both these
schools is done in the same manner as effected in any other Government school.
REJOINDER ARGUMENTS ON BEHALF OF THE PETITIONER
89. In rejoinder, learned counsel for the petitioner re-emphasized that the word free in Article 21A
includes free from cost as mentioned in Section 3 and free from discrimination as stated in Section 8
of the RTE Act, 2009.
90. He submitted that in the absence of physical class room owing to the current pandemic, online
virtual classroom is the best available option. He further submitted that the discrimination at macro
level includes discrimination amongst government and private schools and at the micro level, it
means discrimination in a classroom. He contended that irrespective of whether the discrimination
is at macro or micro level, none is permissible.
91. He emphasised that whether the right under Section 3 is denied or right under Section 8 is
denied, either by the State at macro level or the private school at micro level, it amounts to violation

of Article 21A of the Constitution. He stated that if the decision to impart education/teach by
SMS/WhatsApp is only due to fund constraint, then all schools must be asked to start Synchronous
Face-to-Face Real Time Online Education.
92. He further contended that if 50% students are not attending school in a Municipal Corporation,
then there is no access to education and there is failure of constitutional and statutory obligations by
the respondents. He submitted that any denial of facility on ground of lack of finance is prohibited
or barred by the RTE Act, 2009.
93. He submitted that PRAGYATA is advisory in nature and has no binding force. According to him,
the State also has the duty to initiate appropriate action against any violators/infringers irrespective
of the fact whether any complaint has been filed by a parent or not.
COURT'S REASONING THE RTE ACT, 2009 IS A CHILD CENTRIC' LEGISLATION AND WHILE
INTERPRETING IT ARTICLE 21A HAS TO BE THE GUIDING PRINCIPLE.
94. Article 21A of the Constitution imposes an enforceable / justiciable obligation upon the State to
provide free and compulsory elementary education to each and every child between the age of six
and fourteen in a manner as determined by law. Article 21A is reproduced hereinbelow:-
21A. Right to education.--The State shall provide free and compulsory education to
all children of the age of six to fourteen years in such manner as the State may, by
law, determine.
95. In pursuance to the aforesaid constitutional obligation, the Central Government enacted the
RTE Act, 2009 under Entry 25, List III (Concurrent List), which reads as follows:
25. Education, including technical education, medical education and universities,

subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and
technical training of labour.
96. From the Statement of Objects and Reasons of the RTE Act, 2009, it is apparent that Education
is a public good and the Centre as well as State and local authorities have to ensure universal access
to inclusive and equitable quality education and learning, leaving no one behind. After all it is
central to the realization of sustainable development as it promotes social, economic and political
equality and peace. The Statement of Objects and Reasons of the RTE Act, 2009 is reproduced
hereinbelow:-
INTRODUCTION For strengthening the social fabric of democracy through provision

of equal opportunities to all has been accepted since inception of our Republic. The
Directive Principles of the State Policy enumerated in our Constitution lays down that
the State shall provide free and compulsory education to all children up to the age of
fourteen years. With the insertion of article 21A in the Constitution by the
Constitution (Eighty-sixth Amendment) Act, 2002 wherein it is provided that the

State shall provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State, by law, provides, it became imperative to
enact a law to implement the provision of article 21A of the Constitution. Accordingly
the Right of Children to Free and Compulsory Education Bill was introduced in the
Parliament.
STATEMENT OF OBJECTS AND REASONS The crucial role of universal elementary

education for strengthening the social fabric of democracy through provision of equal
opportunities to all has been accepted since inception of our Republic. The Directive
Principles of State Policy enumerated in our Constitution lays down that the State
shall provide free and compulsory education to all children up to the age of fourteen
years. Over the years there has been significant spatial and numerical expansion of
elementary schools in the country, yet the goal of universal elementary education
continues to elude us. The number of children, particularly children from
disadvantaged groups and weaker sections, who drop out of school before completing
elementary education, remains very large. Moreover, the quality of learning
achievement is not always entirely satisfactory even in the case of children who
complete elementary education.
2. Article 21A, as inserted by the Constitution (Eighty-sixth Amendment) Act, 2002,

provides for free and compulsory education of all children in the age group of six to
fourteen years as a Fundamental Right in such manner as the State may, by law,
determine.
3. Consequently, the Right of Children to Free and Compulsory Education Bill, 2008,
is proposed to be enacted which seeks to provide, --
(a) that every child has a right to be provided full time elementary education of
satisfactory and equitable quality in a formal school which satisfies certain essential
norms and standards;
(b) compulsory education' casts an obligation on the appropriate Government to

provide and ensure admission, attendance and completion of elementary education;
(c) free education' means that no child, other than a child who has been admitted by
his or her parents to a school which is not supported by the appropriate Government,
shall be liable to pay any kind of fee or charges or expenses which may prevent him or
her from pursuing and completing elementary education;
(d) the duties and responsibilities of the appropriate Governments, local authorities,
parents, schools and teachers in providing free and compulsory education; and
(e) a system for protection of the right of children and a decentralized grievance
redressal mechanism.

4. The proposed legislation is anchored in the belief that the values of equality, social
justice and democracy and the creation of a just and humane society can be achieved
only through provision of inclusive elementary education to all. Provision of free and
compulsory education of satisfactory quality to children from disadvantaged and
weaker sections is, therefore, not merely the responsibility of schools run or
supported by the appropriate Governments, but also of schools which are not
dependent on Government funds.
5. It is, therefore, expedient and necessary to enact a suitable legislation as envisaged

in Article 21A of the Constitution.
6. The Bill seeks to achieve this objective.
97. In Brown Vs. Board of Education, 98 L Ed 873, Earl Warren, C.J., while emphasising the
importance of the right to education said, Today, education is perhaps the most important function
of State and local Governments... It is required in the performance of our most basic public
responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today
it is the principal instrument in awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his environment. In these days, it is
doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an
education.
98. In Learning: The Treasure Within (UNESCO, Paris, 1996), it was stated .....education is not a
miracle cure or a magic formula opening the door to a world in which all ideals will be attained, but
as one of the principal means available to foster a deeper and more harmonious form of human
development and thereby to reduce poverty, exclusion, ignorance, oppression and war.
99. Universal elementary education as a constitutional goal and obligation is a salutary principle
and while interpreting the provisions of the RTE Act, 2009, Article 21A has to be the guiding
principle. In Ashoka Kumar Thakur vs. Union of India & Ors., (2008) 6 SCC 1, it has been so held.
Consequently, the RTE Act, 2009, which is a social welfare legislation, has to be read as a child
centric legislation.[See: Society For Unaided Private Schools of Rajasthan (supra)]
100. Further, the Supreme Court in Jindal Stainless Limited & Anr. vs. State of Haryana & Ors.,
(2017) 12 SCC 1 has held that the Constitution being a living and dynamic document ought to receive
a dynamic and pragmatic interpretation that harmonizes and balances competing aims and
objectives and promotes attainment of natural goods and objections. It was further held that this
may at times involve ironing out rough edges, which a Constitutional Court may necessarily
undertake to avoid confusion and negation of the constitutional objective.
THIS COURT CAN APPLY AN UPDATING CONSTRUCTION AND/OR DYNAMICALLY

INTERPRET THE PROVISIONS OF THE RTE ACT, 2009 ACCORDING TO THE EVOLVING
NEEDS OF THE SOCIETY.

101. It is submitted that Acts are usually regarded as always speaking'. According to Bennion on
Statutory Interpretation (Seventh Edition)', it is presumed that Parliament intends the Court to
apply a construction that allows for changes that have occurred since the Act was initially framed
(an updating construction). Exceptionally, an Act like a historical Act, may be intended to be applied
in the same way whatever changes might occur after its passing. An updating construction is not
therefore applied to it.
102. In his treatise, Bennion (Seventh Edition) states, each generation lives under the law it inherits.
Constant formal updating is not practicable, so an Act takes on a life of its own. Although the
language originally used endures as law, its current subjects may find that law more and more ill-
fitting. Viewed like this, an Act resembles a vessel launched on some one- way voyage from the old
world to the new. The vessel is not going to return nor are its passengers. Having only what they set
out with, they try to cope as best they can. On arrival in the present, they deploy their native
endowments under conditions originally unguessed at. Parliament, in the wording of an enactment,
is expected to anticipate developments over time and drafters will try to foresee the future and allow
for it in the wording. However, the Court may apply an updating construction even if the drafters
efforts in this regard have not been successful.
103. In construing an Act (other than one whose meaning and application are, exceptionally, fixed in
time), the interpreter is to presume that Parliament intended the Act to be applied at any future
time in such a way as to give effect to the true original intention, making allowances for any relevant
changes that have occurred since the Acts passing.
104. The changes that may give rise to the question as to whether an updating construction
appropriately includes technological or scientific developments, new natural phenomena or
diseases, changes in social conditions or in the way that society views particular matters. However,
the categories of changes that might be relevant are not fixed.
105. The presumption however is that an updating construction is to be applied to an Act, since this
is the nature of statute law: an Act is always speaking. So there must be some reason adduced on
account of which Parliament is taken to depart in a particular case from this principle. Leggatt J said
in R (on the application of ZYN) v. Walsall Metropolitan Borough Council, [2014] EWHC 1918
(Admin) :
It is not difficult to see why an updating construction of legislation is generally to be

preferred. Legislation is not and could not be constantly re-enacted and is generally
expected to remain in place indefinitely, until it is repealed, for what may be a long
period of time. An inevitable corollary of this is that the circumstances in which a law
has to be applied may differ significantly from those which existed when the law was
made-as a result of changes in technology or in society or in other conditions. This is
something which the legislature may be taken to have had in contemplation when the
law was made. If the question is asked is it reasonable to suppose that the legislature
intended a court applying the law in the future to ignore such changes and to act as if
the world had remained static since the legislation was enacted? the answer must

generally be "no". A "historical" approach of that kind would usually be perverse and
would defeat the purpose of the legislation.
106. An updating construction may involve changes, over time, in the way an expression is
construed. In Fitzpatrick v Sterling Housing Association, [2001] 1 AC 27, the House of Lords
considered whether a same sex partner of a tenant was a member of the tenant's 'family' for the
purpose of the Rent Act 1977. That Act was a consolidation of (amongst other Acts) a 1920 Act. It
was held that the same sex partner was a member of the family. Lord Slynn said, It is not an answer
to the problem to assume (as I accept may be correct) that if in 1920 people had been asked whether
one person was a member of another same-sex person's family the answer would have been "No".
That is not the right question. The first question is what were the characteristics of a family in the
1920 Act and the second whether two same-sex partners can satisfy those characteristics so as today
to fall within the word "family". An alternative question is whether the word "family" in the 1920 Act
has to be updated so as to be capable of including persons who today would be regarded as being of
each other's family, whatever might have been said in 1920.... Lord Nicholls said,......When
circumstances change, a court has to consider whether they fall within the parliamentary intention.
They may do so if there can be detected a clear purpose in the legislation which can only be fulfilled
if an extension is made. How liberally these principles may be applied must depend upon the nature
of the enactment, and the strictness or otherwise of the words in which it was expressed. In the
present case Parliament used an ordinary word of flexible meaning and left it undefined. The
underlying legislative purpose was to provide a secure home for those who share their lives together
with the original tenant in the manner which characterises a family unit. This purpose would be at
risk of being stultified if the courts could not have regard to changes in the way people live together
and changes in the perception of relationships. This approach is supported by the fact that
successive Rent Acts have used the same undefined expression despite the far reaching changes in
ways of life and social attitudes meanwhile. It would be unattractive, to the extent of being
unacceptable, to interpret the word family in the Rent Act, 1997 without regard to these changes.
107. The nature of an always speaking Act requires the Court to take account of changes in
technology, and treat the statutory language as modified accordingly when this is needed to
implement the legislative intention. For instance, in Lockheed-Arabia Corpn v. Owen, [1993] QB
806 at 814, Mann LJ relied upon the above statement in holding that the reference to 'any writing
proved . . . to be genuine' in the Criminal Procedure Act 1865, Section 8 (which permits comparison
of a disputed writing with any such genuine writing) must now be taken to allow comparison with a
photocopy of the genuine writing since the legislators of 1865 could not have foreseen 'the facsimile
reproductions which now we both suffer and enjoy.
108. The Foreign Enlistment Act 1870, Section 4 makes it an offence for a British subject to accept
any engagement in the military or naval service of a foreign State which is at war with a friendly
State. The mischief at which Section 4 is aimed requires this phrase to be taken as now including air
force service. Textual updating of the 1870 Act was recommended in the Report of the Committee of
Privy Councillors appointed to inquire into the recruitment of mercenaries, but has not been done.
Even so, according to Bennion, it seems that a modern court should treat military or naval service in
Section 4 as including any service in the armed forces of the State in question.

109. In R (Quintavalle) v. Secretary of State for Health, [2003] UKHL 13, Lord Steyn expressed the
desirability of applying an updating construction in cases where there have been technological
developments in the following terms:
25 In such a case involving the application of a statute to new technology it is plainly

not necessary to ask whether the express statutory language is ambiguous. Since
nobody suggests the contrary, I say no more about the point ... in order to give effect
to a plain parliamentary purpose a statute may sometimes be held to cover a
scientific development not known when the statute was passed. Given that
Parliament legislates on the assumption that statutes may be in place for many years,
and that Parliament wishes to pass effective legislation, this is a benign principle
designed to achieve the wishes of Parliament.
110. In Attorney General v. Edison Telephone Co of London Ltd., (1880) 6 QBD 244, the Court
considered whether the Telegraph Act 1869, which gave the Postmaster-General an exclusive right
of transmitting telegrams, applied to communications by telephone (which was invented after the
Act had been passed). The term 'telegram' was defined as 'any message or other communication
transmitted or intended for transmission by a telegraph'. The term 'telegraph' included 'any
apparatus for transmitting messages or other communications by means of electric signals'. It was
held that the exclusive right applied to communications by telephone. The fact that the telephone
was a new invention did not prevent the Act applying in relation to it. As Stephen J. said, Of course
no one supposes that the legislature intended to refer specifically to telephones many years before
they were invented, but it is highly probable that they would, and it seems to us clear that they
actually did, use language embracing future discoveries as to the use of electricity for the purpose of
conveying intelligence.'
111. Similarly, developments which take place in medical science and techniques may require an
updated construction of statutory language. In R v. Chan-Fook, [1994] 1 WLR 689, the Court was
concerned with the phrase 'actual bodily harm' in the Offences against the Person Act 1861, Section
47. Hobhouse LJ cited the dictum of Lynskey J that There was a time when shock was not regarded
as bodily hurt, but the day has gone by when that could be said. A further change with the passage of
time is indicated by Hobhouse LJs remark that the conventional phrase nervous shock is now
inaccurate and inappropriate - rather, the question was whether there was a psychiatric injury.
112. In R v Secretary of State for Health, ex p Hammersmith and Fulham LBC, (1999) 31 HLR 475 at
479, Sir Christopher Staughton said, It is undoubtedly the law that an Act of Parliament is not to be
confined to those situations which were covered by its wording when it was first enacted. One could
not, for example, say that a nineteenth-century enactment dealing with "infection" or "disease" did
not apply to Aids, which (as far as we know) did not then exist. In that sense almost all Acts are
"always speaking", to use the phrase quoted from Bennion on Statutory Interpretation (2nd ed.).....'
113. A perusal of the Statement of Objects and Reasons of the RTE Act, 2009 reproduced
hereinabove, reveals that it is not a historical Act, but an always speaking statute' which intends to
achieve social, economic and political equality and human progress over a period of time.

Accordingly, this Court is of the view that RTE Act, 2009 is not a static but a living and a dynamic
document and it ought to receive a pragmatic interpretation. Consistent with the legislative intent,
an updating construction has to be applied to RTE Act, 2009 and the Court of law can deal with a
drastically changed situation, like Covid-19 pandemic, even if it was not known or visualized by
Parliament when the Act was enacted.
114. Consequently, this Court can dynamically interpret the provisions of the RTE Act, 2009
according to the evolving needs of the society and extend the same to advent of new technologies
like synchronous online learning/communication in the current Covid-19 pandemic situation, even
if, the Parliament while passing the RTE Act, 2009 did not anticipate the Covid-19 crisis and/or the
unforeseen and unprecedented situation as prevailing today.
THE WORD EDUCATION HAS A FLEXIBLE MEANING. THE NEIGHBOURHOOD SCHOOLS

IMPART SYNCHRONOUS FACE-TO- FACE REAL TIME ONLINE EDUCATION NOT AS A
VOLUNTARY OR SOCIAL SERVICE BUT AS A PART OF THEIR RESPONSIBILITIES UNDER
THE RTE ACT, 2009.
115. The word Education is not defined under the RTE Act, 2009. According to a group of
educationists, the word Education has been derived from the Latin term "Educatum" which means
the act of teaching or training, while according to another group of educationists, it has come from
the Latin word "Educare" which means "to bring up" or "to raise". For others, the word Education
has originated from another Latin term "Educere" which means "to lead forth" or "to come out". All
these meanings broadly indicate that education seeks to nourish the good qualities in man and draw
out the best from every individual. Education seeks to develop the innate inner capacities of man.
116. According to English dictionaries, Education means the act or process of imparting or acquiring
or disseminating information, knowledge, skill, developing the process of reasoning and judgment
and generally of preparing oneself or others intellectually for mature life. The purpose of Education
has always been to give knowledge, skill and information to the young in order to develop in an
orderly sequential way into members of society.
117. Two prominent Sanskrit words equivalent to the word Education are "Shiksha" and "Vidya".
Shiksha means to "control or to discipline". The term "Vidya" is derived from "Vidh" which means
"to know". Discipline and Knowledge were the most important aspects of human personality during
the ancient period of education. Education has been interpreted by various philosophers and texts
differently. For instance, according to Rigveda, Education is something which makes man
self-reliant and selfless", while according to Upanishads, Education is for liberation" and Bhagavad
Gita states, Nothing is more purifying on earth than wisdom." Similarly, according to Vivekanand,
Education is the manifestation of the divine perfection, already existing in man", while according to
Gandhi, by education, I mean an all-round drawing out of the best in the child and man body, mind
and spirit." Rabindranath Tagore was of the view that the widest road leading to the solution of all
our problems is education." According to him, Education means enabling the mind to find out that
ultimate truth which emancipates us from the bondage of dust and gives us wealth not of things but
of inner light, not of power but of love. It is a process of enlightenment. It is divine wealth. It helps

in realization of truth."
118. The new National Education Policy, 2020 prepared by the Government of India states that
education is fundamental for achieving full human potential, developing an equitable and just
society, and promoting national development. Accordingly, education has to aim at the full
development of the human personality, promote mutual understanding, tolerance, friendship and
peace. Providing universal access to quality education is the key to Indias continued ascent, and
leadership on the global stage in terms of economic growth, social justice and equality, scientific
advancement, national integration, and cultural preservation. Universal high-quality education is
the best way forward for developing and maximizing our country's rich talents and resources for the
good of the individual, the society, the country and the world. India will have the highest population
of young people in the world over the next decade, and our ability to provide high-quality
educational opportunities to them will determine the future of our country.
119. The global education development agenda reflected in the Goal 4 (SDG4) of the 2030 Agenda
for Sustainable Development, adopted by India in 2015 - seeks to "ensure inclusive and equitable
quality education and promote lifelong learning opportunities for all" by 2030. Such a lofty goal will
require the entire education system to be reconfigured to support and foster learning, so that all of
the critical targets and goals (SDGs) of the 2030 Agenda for Sustainable Development can be
achieved.
120. This Court is of the view that the RTE Act, 2009 intentionally does not define the word
Education as it needs to deal with changes in society as well as technological advances, outbreak of
diseases, natural calamities and a broad range of circumstances that are not possible to anticipate in
advance.
121. Consequently, the word Education is not a static one but an evolving and a dynamic concept.
The mode, manner and method of imparting education have evolved from time to time and if
universal good quality education has to be achieved in future, the mode and method of education
have to undergo a complete revolution.
122. As rightly pointed out by Mr. Ramesh Singh, learned Standing counsel for GNCTD, even the
Supreme Court of India in Senior Electric Inspector & Ors. (supra), has held that a dynamic
interpretation has to be given to words used in an Act. The relevant portion of the said judgment
reads; But in a modern progressive society it would be unreasonable to confine the intention of a
Legislature to the meaning attributable to the word used at the time the law was made, for a modern
Legislature making laws to govern a society which is fast moving must be presumed to be aware of
an enlarged meaning the same concept might attract with the march of time and with the
revolutionary changes brought about in social, economic, political and scientific and other fields of
human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the
words used to take in new facts and situations, if the words are capable of comprehending them.
123. The judgment in EERA Through Dr Manjula Krippendorf (supra) referred to by the learned
senior counsel for respondent No.18 is clearly distinguishable as the said case was under the

Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act)
dealing with criminal offence based entirely on age. Such enactment therefore has to be construed
strictly. Secondly, para 134 of the said judgment defines child and its para 135 sets out Section 5(k)
dealing with sexual assault, which in turn, includes cases of taking advantage of a childs mental /
physical disability. In other words, the mental facet of the child was very much in contemplation of
the legislature at the time of drafting of POCSO Act.
124. This Court is of the opinion that the word Education is a broad term which has a wide import
and it must be given the widest amplitude as well as a dynamic interpretation having regard to the
context, requirement, mode, method and in the light of all relevant interpretative criteria.
125. This Court is further of the view that Article 21A of the Constitution when read with Sections 8,
9, 10 and 19 of RTE Act, 2009 along with Schedule to the Act contemplate providing of education by
a neighborhood school, which schools, in turn, are free to choose their mode and method of
imparting education provided they fulfill the minimum statutory requirement. Consequently, the
concept of Synchronous Face-to-Face Real Time Online Education like any other alternate
means/methods of dissemination of education, in that sense, is covered under the RTE Act, 2009.
126. It is pertinent to mention that Sections 3(1), 8 and 12(1)(c) of the RTE Act, 2009 do not restrict
education in a neighborhood school to offline education. Further, there is no statutory bar on
neighbourhood schools imparting online education by digital means.
127. It is nobodys case that schools imparting Synchronous Face-to-Face Real Time Online
Education are not teaching as per the curriculum/syllabus as laid down by the Academic Authority
under Section 29 or the said schools do not fulfill the minimum requirements with respect to the
qualifications of teachers as contemplated in Section 23 of the RTE Act, 2009. Accordingly, the
private schools which are providing Synchronous Face-to-Face Real Time Online Education are the
very same neighborhood schools which satisfy all the requirements of RTE Act, 2009.
128. Hence, the teaching through online means is in accordance with RTE Act, 2009 requirements.
Therefore, both the requirements of Article 21A and Section 3 of RTE Act, 2009 are clearly fulfilled
even in respect of education being imparted through online means.
129. The only difference is that the set-up/ platform used for providing education is different. But
then, it cannot be said that the said schools are, in fact, not providing education, even though the
set-up/ platform / mode / method may be different. Since mode and method of imparting education
is flexible, it cannot be said that the RTE Act, 2009 contemplates providing education only in a
formal physical classroom, even though the school which is providing education through online
means is indisputably a neighborhood school. Even Section 19 read with the Schedule to RTE Act,
2009 does not so indicate. The said provision only means that in case of dissemination of
instructions through physical classroom, the prescribed minimum infrastructure as contemplated in
the said provision/ Schedule are required.

130. In view of the foregoing, the expression ... shall provide ...education in Article 21A and
provide... elementary education' in Sections 3, 8(a) and 12(1)(c) of RTE Act, 2009 ought to be
interpreted to also include providing education through digital means including through online
means. Consequently, at the present, the neighborhood schools are still open but the physical
classrooms are closed and the mode / method of providing education has changed. In fact, the
Private Unaided Schools, despite closure / shutdown of physical class-rooms under the Disaster
Management Act, 2005 due to outbreak of Covid-19 pandemic, are charging tuition fees, on the
ground that they are providing Synchronous Face-to-Face Real Time Online Education. This Court
is of the view that tuition fees is payable towards imparting education and not for a lien on a seat.
Accordingly, the word Education includes Synchronous Face-to-Face Real Time Online Education
and respondent schools are estopped from contending to the contrary. In fact, a Coordinate Bench
of this Court in Naresh Kumar (supra) has held as under:-
13. ......Schools, being presently closed, Dr. Sharma would seek to rely on this proviso
to submit that tuition fees cannot be charged by schools, during the period of such
closure. We do not agree. So long as education is being imparted online, and students
are availing the benefit thereof, in our opinion, schools cannot be treated as closed, so
as to disentitle them from charging tuition fees.
xxxx xxxx xxxx xxxx
15. ......The petitioner seeks that, for the period during which the lockdown is in place,
no tuition fees be charged by schools as, in his submission, they are closed. We find
the submission to be fundamentally misconceived. .........we cannot agree that, during
the period of lockdown, or during the period when online education is being provided
by the schools, and availed of, by students, tuition fees should be exempted. So long
as schools are disseminating education online, they are certainly entitled to charge
tuition fees. .......
131. Consequently, the neighbourhood schools impart Synchronous Face- to-Face Real Time Online
Education not as a voluntary or social service but as part of their responsibilities under the RTE Act,
2009.
THE GOVERNMENT SCHOOLS ARE FREE TO DEPART FROM THE MODE AND METHOD OF
EDUCATION ADOPTED BY PRIVATE SCHOOLS PROVIDED THE BASIC MINIMUM STANDARD
OF IMPARTATION OF EDUCATION IS MET. THIS COURT IS OF THE VIEW THAT
SYNCHRONOUS FACE-TO-FACE REAL TIME ONLINE EDUCATION IS NEITHER A CORE NOR
A NON-DEROGABLE FACET OF EITHER ARTICLE 21A OF THE CONSTITUTION OR THE RTE
ACT, 2009.
132. Undoubtedly, Government and private schools are at the same footing with regard to norms
and standards under the RTE Act, 2009. However, insofar as method and mode of providing
education is concerned, the same can be different amongst the private schools themselves; between
private schools and government schools; between Central Government schools and State

Government schools. The only common bottom line among all the schools is that the method and
means of providing education in all such classes should adhere to the minimum prescribed standard
under the RTE Act, 2009.
133. In fact, the provisions of Delhi School Education Act, 1973 (hereinafter referred to as DSE Act)
as well as the RTE Act, 2009 themselves contemplate differential methods/means of providing
elementary education amongst private schools themselves inasmuch as DSE Act does not prescribe
a fee cap and regulates tuition fee only to the extent that such fee charged has to be justified qua the
cost incurred by the school towards curricular activities. In Modern School vs. Union of India &
Ors., (2004) 5 SCC 583 the Court has discussed the extent of disclosure to be made by the school in
a fee proposal submitted before commencement of the academic year. Further, Section 12(2) of the
RTE Act, 2009 supports the differential method as it contemplates reimbursement of not the actual
cost of tuition fees incurred by the private school but of one common amount i.e. per child cost
incurred by government in its schools. Section 12(2) of the RTE Act, 2009 also contemplates that
there could be schools where the fees is even lower than what the government incurs per child in its
schools. Therefore, Section 12(2) unequivocally proves the existence of a differential fee structure
amongst private unaided schools and consequently, differential methods/means of dissemination of
instructions amongst the private schools.
134. This Court is of the view that just as private schools are free to adopt the mode and method of
imparting education they feel the most appropriate, the government schools also have similar
freedom and flexibility.
135. On account of the COVID-19 pandemic and the consequential directives issued by Central and
State Governments, under the Disaster Management Act, 2005 imparting of curricular education
through physical classrooms had come to a halt. As during the present period of pandemic, the
method/means of education was not regulated and/or dictated by the State Government under any
circular and both the teaching and non- teaching staff of private unaided schools were still employed
as well as entitled to their salaries, the private unaided schools at their own initiative started
imparting education through virtual/online means.
136. Though learned counsel for petitioner submitted that in the absence of a physical classroom
owing to the current pandemic situation, Synchronous Face-to-Face Real Time Online Education is
the best available option, yet the experts seem divided over this issue.
137. Both PRAGYATA Guidelines for digital education issued in August, 2020 by Department of
School Education & Literacy, Ministry of Human Resource Development, Government of India and
Students' Learning Enhancement Guidelines prepared by NCERT on behalf of Government of India,
Ministry of Education, Department of School Education and Literacy recommend a combination of
video conferencing and other distant/digital means as mode and method of education during the
pandemic. According to them, this combination of imparting education may serve the best interests
of the child. PRAGYATA Guidelines for digital education states Schools should not assume that
teaching-learning through synchronous communication is the only requirement or even desirable in
order to support effective digital learning. The goal is NOT to try and recreate face- to-face (F2F)

classrooms over the internet. Anytime, anywhere, online and blended learning provide
opportunities for learners to work more independently, expand their agency, intellectual horizon,
learn to use tools and strategies that otherwise may not be feasible in classrooms for
teaching-learning and assessment...... keeping in mind the detrimental effect of the internet and
gadgets, judicious use of the internet may be monitored by the parents." In the New Education
policy, 2020 even though provisions have been made for digital education, yet it has not prescribed
for virtual classroom education as a serious alternative to physical classroom viz-a-viz access to
education. Consequently, there is no unanimity amongst experts that Synchronous Face-to-Face
Real Time Online Education is the only mode of imparting education during the Covid-19 pandemic.
138. Further, there is neither any statutory obligation under the RTE Act, 2009 nor any
recommendation by any statutory authority like State Academic Authority that the Synchronous
Face-to-Face Real Time Online Education is the only suitable option during a pandemic. There is
also nothing on record to conclude that the decision of GNCTD or other authorities or some private
schools to impart education/teach by SMS/WhatsApp or by assignment is only due to fund
constraints.
139. This Court is of the opinion that in view of geographical location of a school or non-availability
of technologically savvy teachers or poor availability of electricity or lack of internet penetration in
the neighbourhood, it may also not be appropriate for a school to opt for Synchronous Face-to-Face
Real Time Online Education.
140. In fact, PRAGYATA suggests to the States to develop a short-term and a long-term learning
plan based on an assessment of the capacity of the State systems, resources to support a
multi-faceted remote learning model, including a combination of technologies and delivery
mechanisms based on the data of students and their access to digital technologies. It also states that
equity should be a top consideration in all planning efforts, as the many vulnerable students most
likely lack the ability to access digital resources. The short-term plan should focus on the immediate
response to continue learning for all students, the medium-term plan will prepare the schools to
reopen and function normally. A number of considerations have been outlined in the document
which the State has to keep in mind while planning digital education at the State/Institution/Board
level.
141. Consequently, this Court is of the view that the Government schools are free to depart from the
mode and method of education adopted by private schools provided the basic minimum standard of
impartation of education, which in the present situation would be such mean/method through
which the prescribed curriculum is covered by the school, in a meaningful manner. But, it would not
include any such means/methods which is nothing more than an eyewash or a sham. In other
words, there has to be one common minimum level/standard of impartation of education for all
schools. Further, the said school has to then ensure that the same is uniformly adopted and followed
sans any discrimination.
142. As far as the plea of the petitioner that this Court must frame guidelines for dissemination of
education during the pandemic by Government schools is concerned, this Court is of the view that it

can exercise its constitutional power to frame guidelines for online education, provided it is in
connection with the fundamental rights of the citizen when either some exercise in the said field has
been undertaken by an expert or there is unanimity on the issue and also when there is no
legislation covering the said field, for example in Vishaka and Ors. vs. State of Rajasthan & Ors.,
(1997) 6 SCC 241, guidelines were framed by the Supreme Court regarding sexual harassment in
workplaces as there was no legislation in place. In the present case, this Court refuses to exercise its
constitutional power to adjudicate upon the guidelines framed by Ministry of Education like
PRAGYATA and Students' Learning Enhancement Guidelines issued by NCERT, to the extent they
permit different schools to adopt different modes and methods of education as they are not in
conflict with any constitutional/statutory provision.
143. Accordingly, this Court is of the view that Synchronous Face-to- Face Real Time Online
Education is neither a core nor a non-derogable facet of either Article 21A of the Constitution or the
RTE Act, 2009.
KEEPING IN VIEW RTE ACT, 2009 AS WELL AS GUIDELINES FOR DIGITAL EDUCATION
ISSUED BY UNION OF INDIA AND NCERT, IT CANNOT BE SAID THAT THE EDUCATION
BEING PROVIDED BY GNCTD SCHOOLS DOES NOT SATISFY THE BASIC MINIMUM
REQUIRED LEVEL OF IMPARTATION OF EDUCATION IN THE PRESENT EXTRAORDINARY
SCENARIO.
144. Insofar as GNCTD is concerned, it is providing education under the Circular dated 2nd July,
2020 read with Circular dated 13th July, 2020.
145. This Court is of the view that PRAGYATA, which is a recommendation by an expert body,
supports the method/manner of impartation of education as undertaken by GNCTD. In fact, the
said two Circulars are in conformity with Model 2 of Partially Online Mode of Education suggested
by PRAGYATA. The said Model 2 suggests, Teachers instruct students to read the textbook and
other reference materials physically available with the student and then the teacher (once a week)
interacts with students through WhatsApp, phone call, video call to clarify/enrich/teach the content.
146. Consequently, this Court is of the view that it cannot be said that the education being provided
by GNCTD schools does not satisfy the basic minimum required level of impartation of education in
the present extraordinary scenario.
DIFFERENTIAL ACCESS TO EDUCATION AMONGST FEE PAYING STUDENTS IS

PERMISSIBLE UNDER THE RTE ACT, 2009.
147. Sub-Sections (1) and (2) of Section 3 of the RTE Act, 2009 specifically stipulate that every child
of the age of six to fourteen years including a child belonging to disadvantaged group as well as
weaker sections shall have the right to free and compulsory elementary education. Section 3(2)
clarifies that the State is duty bound to ensure that no fee, charges or expenses prevents a child,
including EWS/DG children studying in private schools, from pursuing and completing elementary
education.

148. Consequently, elementary education is now a fundamental human right as well as an enabling
right and every child irrespective of his/her financial status is guaranteed the right to free and
compulsory education. Paragraph 4 of the Objects and Reasons of the RTE Act, 2009 and the
judgment of the Supreme Court in Society for Unaided Private Schools of Rajasthan (supra)
reinforces the said interpretation.
149. Section 8 of RTE Act, 2009 provides a corresponding obligation on the appropriate government
to provide free, compulsory and good quality elementary education in a neighbourhood school
subject to one exception as set out in proviso to Section 8(a) whereby fee paying parents are
excluded from getting any financial support from the State.
150. Upon a holistic reading of Sections 3, 8 and 12(1)(c), it is apparent that the obligations of the
State as well as private unaided schools under the RTE Act, 2009 are to the students studying in
government schools and 25% EWS/DG students except for fee paying students.
151. Consequently, differential access to Education amongst fee paying students is permissible under
the RTE Act, 2009. Accordingly, if amongst fee paying students in a class, 15 students have a
smartphone and a laptop with internet connectivity, 10 students have a smartphone with internet
connectivity but no laptop, 4 students have a basic mobile phone and 1 student does not have even a
mobile phone, then no one can allege discrimination and/or seek financial aid under the RTE Act,
2009 to purchase a gadget to access or avail online education.
INTRA-CLASS DISCRIMINATION, INTER-SE 75% FEE PAYING STUDENTS VIZ-A-VIZ 25%

EWS/DG STUDENTS' WITH REGARD TO ACCESS TO EDUCATION AMOUNTS TO
DISCRIMINATION AS WELL AS DIGITAL APARTHEID' AND IS VIOLATIVE OF THE
CONSTITUTION AND RTE ACT, 2009.
152. In terms of Section 12(1)(c) of the RTE Act, 2009, schools specified in Section 2(n)(iii) and (iv)
have to provide free and compulsory elementary education to the EWS/DG children (which
constitute 25% of the total strength of the class) in the neighbourhood school. The expression used
in Section 12(1)(c) namely provide free and compulsory education till its completion' is identical to
the one used in Section 3(1) and therefore, the private unaided schools obligations under Section
12(1)(c) is to completely take care of the corresponding rights of 25% EWS/ DG children) as
stipulated under Section 3(2) read with Section 3(1) i.e. imparting elementary education to such
children between the age of six to fourteen years sans any financial barrier.
153. Section 8(c) of RTE Act, 2009 casts an obligation on the State to ensure that no child belonging
to EWS/DG group is discriminated against and prevented from pursuing and completing
elementary education.
Section 8(d) of RTE Act, 2009 specifically casts an obligation on the State to provide infrastructure
including learning equipment to the children. In the opinion of this Court, the expression learning
equipment would include gadgets required for accessing and availing online education, if imparted
by the school.

154. Accordingly, Sections 3, 8 and 12(1)(c) of the RTE Act, 2009 provide EWS/DG students a level
playing field with regard to access to education by providing a complete waiver of fees as well as
expenses. All the expenditure necessary for pursuing and completing the elementary education qua
EWS/DG students including the cost of providing of gadgets for providing access to elementary
education in a school has not to be borne by their parents.
155. Rule 11(1) and 11(2) of the Central RTE Rules, 2010 as well as Rule 10(2) of the Delhi RTE
Rules, 2011 clarify beyond doubt that the EWS/DG children admitted in accordance with Section
12(1)(c) cannot be discriminated qua rest of the children in any manner pertaining to entitlements
and facilities which includes information and communication technology facilities i.e. digital
education. Rule 11(2) of the Central RTE Rules, 2010 is reproduced hereinbelow:-
11. Admission of children belonging to weaker section and disadvantaged group.-
xxx xxx xxx (2) The school referred to in clauses (iii) and (iv) of clause (n) of section 2
shall ensure that children admitted in accordance with clause (c) of sub-section (1) of
section 12 shall not be discriminated from the rest of the children in any manner
pertaining to entitlements and facilities such as text books, uniforms, library and
Information, Communication and Technology (ICT) facilities, extra-curricular and
sports.
156. The argument that private unaided schools are required to provide equipment to EWS/DG
students only if they are providing such equipment to the 75% fee paying students is mis-conceived.
Section 12(1)(c) requires private unaided schools to inter alia provide free and compulsory
elementary education to 25% EWS/DG students; which means education sans financial barrier
viz-a-viz those things which are indispensable for access to elementary education. Section 12(1)(c)
obligation is in no way dependent upon what school gives to the fee paying children, free or
otherwise. The equipment in question is indispensable/mandatory for the purpose of accessing and
availing elementary education through online means and therefore has to be provided free of cost
under Section 12(1)(c). Moreover, everything which is necessary for pursuing and completing
elementary education which fee paying students are also required to have, are not provided free to
such students. They pay for it. For example, in case of uniform, reading materials and textbooks,
even the said articles come under Section 12(1)(c), and are therefore to be provided free to 25%
EWS/DG students, even though the 75% fee paying students have to pay for them and they may or
may not have. Consequently, intra-class discrimination, inter-se 75% fee paying students viz-a-viz
25% EWS/DG students with regard to access to education amounts to discrimination under the RTE
Act, 2009.
157. The discrimination in the classroom is far more serious as the same has direct nexus with the
possibility of a child dropping out of school and disturbing other children belonging to EWS/DG
category which would defeat the very object of the RTE Act, 2009. Dropout, even if partial, would
have an adverse domino effect inasmuch as the same would result in the percentage of EWS/DG
students falling below 25% limit which has been statutorily recognized to be the critical mass for the
purpose of achieving the object behind the RTE Act, 2009. Consequently, interpretation of Article

21A and Sections 3, 8, 12(1)(c) which might cause learning loss and encourage dropout of EWS/DG
children has to be avoided. Accordingly, the expression manner cannot be read in a way that
abridges or whittles down Article 21A or prevents EWS/DG children from having access to
education.
158. Though PRAGYATA as well as Students Learning Enhancement Guidelines do not specifically
refer to intra-class differentiation between 75% fee paying students and 25% EWS/DG students, yet
even if they were to, they would have to give way as they are advisory in nature and cannot be
contrary to the Statute i.e. Sections 3, 8 and 12(1)(c) of the RTE Act, 2009.
159. In Shamsara Begum vs. Directorate of Education & Ors., W.P.(C) 2887/2010, a coordinate
Division Bench (in which one of us Manmohan, J was a member) has observed that any vertical
division in a classroom is not permissible. In the Declaration adopted at the Special UN Session on
Children, it was stated, each girl and boy is born free and equal in dignity and rights; therefore, all
forms of discrimination affecting children must end'.
160. Since some private unaided schools and Government schools like Kendriya Vidyalayas are
using Synchronous Face-to-Face Real Time Online Education as a method/mode for teaching, they
will have to ensure that the students belonging to EWS/DG category have access and are able to
avail the same. As online learning facility is nothing but a virtual classroom, i.e. simulation of a
physical classroom by replacing dissemination of instructions in direct physical presence by virtual
dissemination, by not providing the required indispensable equipment to the EWS / DG category
students (who, otherwise, are not in a position to buy /source such equipment from their own
means) the schools are putting a financial barrier qua such students and thereby preventing them
from opening the link and pursuing and completing their elementary education in the present
pandemic at par with other students in the same class. Consequently, the right of EWS/DG children
under Section 3 of the RTE Act, 2009 has been clearly undermined by such schools and same
amounts to a vertical divide, digital divide or digital gap and segregation of EWS/DG students.
161. In order to address this discrimination and fulfill their obligations, the private unaided schools
under Section 12(1)(c) and Government schools like Kendriya Vidyalayas under Section 3(2) of RTE
Act, 2009 are directed to provide equipment of optimum configuration which is sufficient to enable
EWS / DG students to get access to online learning.
162. This Court is of the view that the tuition fee charged by the private unaided schools is governed
and regulated by the DSE Act and the same does not include expenses on devices such as laptops,
phones, high speed internet at childrens homes etc. Even though the cost of such gadget/digital
equipment which enables access to online learning facilities is not a part of tuition fee, yet it has to
be provided free of cost to the EWS / DG students in terms of Section 12(1)(c) read with Section 3(2)
of the Act, 2009 as cost of such equipment would be covered under Rule 11 of the Central RTE
Rules, 2010 as well as Rule 10 of the Delhi RTE Rules, 2011 and Section 3(2) of the RTE Act, 2009
inasmuch as absence of such equipment will prevent the child from pursuing his or her elementary
education' at par with other students in the same class in the present scenario.

163. Consequently, to ensure level playing field and to remedy this digital divide or digital gap or
digital apartheid in addition to segregation, if the private unaided school has to bear any additional
cost, it must bear it in the first instance with a right to claim reimbursement from the State in
accordance with Section 12(2) of the RTE Act, 2009.
OBLIGATIONS OF THE CENTRAL GOVERNMENT AND STATE GOVERNMENTS UNDER THE

RTE ACT, 2009
164. This Court is further of the view that obligation of the State governments under RTE Act are
three fold, namely, obligation to establish schools under Section 6 of the RTE Act, 2009; duties
provided under Section 8 of the RTE Act, 2009 viz-a-viz government schools and students studying
in such schools and the obligation of reimbursement to private schools as contemplated under
Section 12(2) of the RTE Act, 2009.
165. The Central Government obligations are as an appropriate government under Section 6 of the
RTE Act, 2009 for setting up of schools and under Section 8 of the RTE Act, 2009 wherever it is
running schools like Kendriya Vidyalayas as well as sharing financial responsibility with the state
government, as stipulated under Section 7 and Central Governments obligations under Section 7(6)
of the RTE Act, 2009.
166. Though it is the stand of the respondent no.1 - GNCTD that despite it spending 26% of its
budget on education, it has not been able to fully discharge its obligations under the RTE Act, 2009
for want of additional funds/financial support from the Central Government under Section 7 of the
RTE Act, 2009 as the Central Government spends only 4.43% of GDP on education, yet this Court is
of the view that Section 7(5) of the RTE Act, 2009 provides that the right of children shall not suffer
due to any delay in sharing of financial responsibilities and the State/GNCTD shall be responsible to
provide funds.
167. Moreover, this Court refuses to adjudicate upon the dispute with regard to finances between the
Centre and GNCTD even before the private schools have undertaken their obligation under Section
12(1)(c) of the RTE Act, 2009 and incurred expenses thereof. This is more so when Section 7(5) of
the RTE Act, 2009, as stated hereinabove, stipulates that irrespective of a finance dispute between
the Centre and State, in the first instance the State shall be responsible to provide funds for
implementation of the said Act. This Court is further of the opinion that the GNCTD is neither weak
nor remediless and it can certainly file appropriate legal and constitutional proceedings to seek
redressal of its grievances, if any.
168. Similarly the contention that the extent of reimbursement by the State/GNCTD under Section
12(2) is dismal is irrelevant for the present case as the private unaided schools are at liberty to file
appropriate proceedings in accordance with law.
169. In the opinion of this Court, the judgments of the Supreme Court in Society for Unaided Private
Schools of Rajasthan (supra), Pramati Educational and Cultural Trust (Registered) And Others
(supra) and Hospital Cases i.e. Social Jurists, A Lawyers Group (supra) and UOI vs. Moolchand

(supra) are not apposite to the present case inasmuch as neither the pandemic conditions nor online
education were discussed or adjudicated by the Court in these cases.
170. However, this Court is of the view that the Union of India must seriously consider increasing its
Education budget from the current 4.43% of GDP and investing in digital literacy and infrastructure
in order to strengthen and enable the education system to respond promptly to future crisis.
171. This Court is further of the view that GNCTD must consider rewarding the schools that
innovate. For instance, the schools that started Synchronous Face-to-Face Real Time Online
Education on their own initiative could be considered for the title of innovative schools during the
current year. Such rewards would ensure that the private unaided schools who have started
disseminating Synchronous Face-to-Face Real Time Online Education do not revert to Whatsapp
and Worksheets method and mode of education.
SUMMARY OF FINDINGS / CONCLUSIONS
172. Universal elementary education as a constitutional goal and an enforceable obligation is a

salutary principle. The RTE Act, 2009, is a child centric legislation and while interpreting it Article
21A has to be the guiding principle.
173. Acts are usually regarded as always speaking. It is presumed that Parliament intends the Court
to apply a construction that allows for changes amongst others technological or scientific
developments or new natural phenomena or diseases or changes in social conditions that have
occurred since the Act was initially framed. Further, RTE Act, 2009 is not a historical Act, but a
living and a dynamic document and it ought to receive a pragmatic interpretation.
174. Consequently, this Court can apply an updating construction and/or dynamically interpret the
provisions of the RTE Act, 2009 according to the evolving needs of the society as well as advent of
new technologies like synchronous online learning/communication in the current Covid-19
pandemic situation, even if, the Parliament while passing the RTE Act, 2009 did not anticipate the
Covid-19 crisis and/or the unforeseen and unprecedented situation prevailing today.
175. The word Education is a broad term which has a wide import and it must be given the widest
amplitude as well as a dynamic interpretation, especially when the said word has been left undefined
by the Parliament under the RTE Act, 2009.
176. Undoubtedly, the RTE Act, 2009 lays emphasis on education in a classroom by a neighborhood
school, but the RTE Act, 2009 does not restrict it to offline education. There is also no statutory bar
on neighbourhood schools imparting online education by digital means. The private schools which
are providing Synchronous Face-to-Face Real Time Online Education are the very same
neighborhood schools which satisfy all the requirements of RTE Act, 2009. The only difference is
the set-up/ platform used for providing education. Since mode and method of imparting Education
is flexible, it cannot be said that the RTE Act, 2009 contemplates providing education only in a
formal physical classroom. At the present the neighborhood schools are still open but the physical

classrooms are closed and the mode / method of providing education has changed. In fact, a
Coordinate Bench of this Court in Naresh Kumar (supra) has held that so long as education is being
imparted online, and students are availing the benefit thereof schools cannot be treated as "closed",
so as to disentitle them from charging tuition fees. Consequently, the neighbourhood schools which
impart Synchronous Face-to-Face Real Time Online Education or online education by any means do
not do so as a voluntary or social service but as a part of their responsibilities under the RTE Act,
2009. Further, merely because the Synchronous Face-to-Face Real Time Online Education is being
provided due to the temporary nature of the present pandemic, it will not place the said mode of
imparting education outside the purview of the RTE Act, 2009.
177. Government and private schools are at the same footing with regard to norms and standards
under the RTE Act, 2009. However, insofar as method and mode of providing education is
concerned, the same can be different amongst the private schools; between private schools and
government schools; between Central Government schools and State Government schools.
178. There is neither any statutory obligation under the RTE Act, 2009 nor any recommendation by
any statutory authority like State Academic Authority that the Synchronous Face-to-Face Real Time
Online Education is the only suitable option during a pandemic. Further, there is no unanimity
amongst experts that Synchronous Face-to-Face Real Time Online Education being imparted by
some schools is the only mode of imparting education during the Covid-19 pandemic.
179. GNCTD is providing education through SMS/WhatsApp or by assignment under the Circular
dated 2nd July, 2020 read with Circular dated 13th July, 2020. In fact, the said two Circulars are in
conformity with Model 2 of Partially Online Mode of Education suggested by PRAGYATA.
Consequently, this Court is of the view that it cannot be said that the education being provided by
GNCTD schools does not satisfy the basic minimum required level of impartation of education in the
present extraordinary scenario.
180. Therefore, this Court is of the view that Synchronous Face-to-Face Real Time Online Education
is neither a core nor a non-derogable facet of either Article 21A of the Constitution or the RTE Act,
2009 and schools are entitled in law to adopt different modes and methods of education as long as
they adhere to the minimum prescribed standard under the RTE Act, 2009.
181. Section 3 of the RTE Act, 2009 stipulates that every child irrespective of his/her financial status
is guaranteed the right to free and compulsory education and no child including those belonging to
EWS/DG shall be prevented from pursuing and/or completing elementary education on account of
fees or expenses. However, Section 8(a) excludes fee paying parents from getting any financial
support from the State. Consequently, according to RTE Act, 2009, differential access to Education
amongst fee paying students is permissible.
182. Under Section 12(1)(c) private unaided schools are obliged to take care of 25% EWS/ DG
children as stipulated under Section 3 i.e. impart elementary education to such children sans any
financial barrier. Rule 11 of the Central RTE Rules, 2010 as well as Rule 10 of the Delhi RTE Rules,
2011 clarify beyond doubt that the EWS/DG children admitted in accordance with Section 12(1)(c)

cannot be discriminated qua rest of the children in any manner pertaining to entitlements and
facilities which includes information and communication technology facilities i.e. digital education.
183. If a school decides to voluntarily provide Synchronous Face-to-Face Real Time Online
Education as a method/mode for teaching, they will have to ensure that the students belonging to
EWS/DG category also have access and are able to avail the same. After all, equality of status and
opportunity is one of the cherished goals of Indian Constitution. To separate the EWS/DG students
from others in the same class due to non-availability of a gadget / device would generate a feeling of
inferiority as to their status in the class that may affect their hearts and minds unlikely ever to be
undone. Segregation in Education is a denial of equal protection of the laws under Article 14 of the
Constitution and in particular Sections 3(2) and 12(1)(c) of RTE Act, 2009. Colin Powell former
Secretary of State USA, characterised the gap between those who have access to the wonders of
digital technology and the Internet, and those who do not, as digital apartheid.
184. In fact, by not providing the required indispensable equipment to the EWS / DG category
students the schools are putting a financial barrier qua such students and thereby preventing them
from opening the link and pursuing and completing their elementary education in the present
pandemic in violation of Sections 3, 8, 12(1) (c) of the RTE Act, 2009.
185. The argument that private unaided schools are required to provide equipment to EWS/DG
students only if they are providing such equipment to the 75% fee paying students is mis-conceived.
Section 12(1)(c) requires private unaided schools to inter alia provide free and compulsory
elementary education to 25% EWS/DG students; which means education sans financial barrier
viz-a-viz those things which are indispensable for access to elementary education. Section 12(1)(c)
obligation is in no way dependent upon what school gives to the fee paying children, free or
otherwise. For example, uniform, reading materials and textbooks are provided free to 25%
EWS/DG students, even though the 75% fee paying students have to pay for them.
186. Consequently, intra-class discrimination, especially inter-se 75% fee paying students viz-a-viz
25% EWS/DG students upsets the level playing field' and amounts to discrimination as well as
creates a vertical division, digital divide or digital gap or digital apartheid' in addition to segregation
in a classroom which is violative of RTE Act, 2009 and Articles 14, 20 and 21 of the Constitution.
THANKS
187. This Court places on record its appreciation for the assistance rendered by all counsel who
appeared in the present matter.
RELIEF
188. To address the intra-class discrimination between 25% EWS as well as DG students and 75%
fee paying students, (once a school has voluntarily selected Synchronous Face-to-Face Real Time
Education as its mode and method of impartation of education), the private unaided schools and
Government Schools like Kendriya Vidyalayas under Section 12(1)(c) and Section 3(2) of RTE Act,

2009 are directed to supply gadget(s)/equipment(s) of optimum configuration as well as internet

package so that EWS / DG students have access to online learning, inasmuch as absence of such
equipment(s) prevents the children from pursuing their elementary education.
189. The cost of such gadget(s)/digital equipment(s) as well as internet package are not a part of
tuition fee and have to be provided free of cost to the EWS / DG students by private unaided schools
and Government Schools like Kendriya Vidyalayas subject to the right of private unaided schools to
claim reimbursement from the State in accordance with Section 12(2) of the RTE Act, 2009.
190. Accordingly, this Court directs that the private unaided schools shall be entitled to claim
reimbursement of reasonable cost for procurement of the said gadget(s)/digital equipment(s) as
well as internet package from the State under Section 12(2) of the RTE Act, 2009, even though the
State is not providing the same to its students. The expression expenditure incurred by the State in
the Section 12(2) of RTE Act, 2009 would have to be read as expenditure incurred or would have
been incurred by the State, to give effect to the legislative intent of reimbursing reasonable costs to
private schools on account of their imparting education to 25% EWS/DG students in accordance
with the mandate of RTE Act, 2009. It is settled law that in some cases, an updating construction
may involve the Court applying a strained construction, in order to achieve an Acts purpose in the
light of changes that have occurred since enactment. For instance, the Carriage by Air Act, 1961
gives legislative force to certain Carriage by Air Conventions. The 1955 Convention limited liability
for loss of or damage to registered baggage', but did not explain what registered meant or what
registration' entailed. In Collins Vs. British Airways Board, (1982) QB 734 at 743-744, Lord Denning
MR explained that originally airlines kept register books in which all baggage was entered, but that
this had been discontinued. He stated, What then are we to do? The only solution that I can see is to
strike out the words registered and registration wherever they occur in the articles. By doing this,
you will find that all the articles work perfectly, except that you have to find out what a baggage
check is.
191. This Court is further of the view that its interpretation is in accordance with settled law that
Constitutional Courts ought to give a dynamic interpretation to the provisions of the Constitution as
well as a statute, particularly keeping in mind the evolving needs of the society, more so when such
an interpretation is in consonance with the intent and object of the Act.
192. To ensure uniformity as well as to expedite and streamline the process of identification and
supply of gadgets/equipments to EWS/DG students, this Court directs constitution of a three
member committee within a week comprising Secretary, Education, Ministry of Education, Central
Government or his nominee, Secretary Education, GNCTD or his nominee and a representative of
respondent No.18 to frame a Standard Operating Procedure (SOP) for identification of standard
gadget(s)/equipment(s) as well as the manufacturer/supplier and internet package so that EWS/DG
students can access elementary education through digital online means. The Committee shall
identify gadget(s)/equipment(s) taking into account all relevant factors including their utility, ease
of operation, cost, maintenance charges, life of the gadget(s), reputation of the manufacturer, child
lock etc. within two weeks from its constitution. The Committee shall also decide as to whether any
gadget(s)/equipment(s) needs to be purchased by cluster bidding or by individual schools or hired

by way of lease or licence agreement. The private unaided schools shall either purchase or hire or
lease the gadget(s)/equipment(s) as directed by the said Committee and supply the same along with
internet package to the EWS/DG students within further two weeks. The private unaided schools
shall file their claims for reimbursement under Section 12(2) to the GNCTD within eight weeks from
the date of supply of such gadget(s)/equipment(s). The said claim shall be processed and
reimbursed to the schools within eight weeks from the date of their submission. With the aforesaid
directions, present writ petition and pending applications stand disposed of.
POST SCRIPT
193. This Court clarifies that it has answered the issues raised in the writ petition in accordance with
the Constitution and RTE Act, 2009. However, nothing stated herein prevents the Legislatures as
well as Executive from re-examining the issues and taking a fresh decision with regard to use and
availability of technology and digital means of education as this Court is of the view that the present
pandemic is both a challenge as well as a generational opportunity to re-imagine education by
removing connectivity barriers and related equity gaps and take a quantum jump by assimilating
and incorporating latest technology that helps in providing and delivering quality education. The
new initiatives could even bridge the digital divide between different schools and between fee paying
and non fee-paying students that has become evident during the Covid-19 crisis. At a time, when
benefits have started showing results under social welfare Acts and Schemes, the digital divide has
started threatening the homogeneity. If the poor and needy do not have access to digital education
and if the State does not come forward to provide the much needed access to the Digital Education
for the disadvantaged sections, the dreams of the founding fathers of Constitution would be in
jeopardy.
194. According to many thinkers, the world would be divided by technology not by ideology in the
near future. The initiatives/decisions that central as well as state governments and local authorities
take now will have lasting impact on hundreds and millions of young people and on the
development prospects of India for decades to come. After all, to achieve education for all, Digital
Education is a major component of the solution, though not a replacement for formal classroom
schooling, provided digital- divide is erased from Indian Society.
195. One should also not forget that continuity of learning should not break because once children
step out of learning, coming back is very difficult. It is important to ensure that retrogression, if any,
is temporary and redressed timely. The relationship between children and schools is of paramount
importance and should be continued at all costs in order to safeguard the learning progress made in
the past several years. This Court is of the view that creating a better and resilient elementary
education system is increasingly important as a childs starting point in life determines his/her
future.
MANMOHAN, J Per SANJEEV NARULA, J (Concurring)
1. I have had the advantage of going through the lucid and elaborate judgment authored by my
esteemed colleague Manmohan, J. I respectfully agree with the conclusion drawn by him, and by

way of this concurring note, would like to add a few observations of my own.
The Quintessential Purpose of the RTE Act & a Note of Caution on Digital or Online Format for
Elementary Education
2. It has been extensively discussed by my brother Manmohan J. that the RTE Act, 2009 and the
term "education" are required to be interpreted dynamically, according to the needs of the changing
society. I am in complete agreement with him. At the same time, I would like to add that while the
term "education" can be expanded to include digital or online education, such a format can only
function as a supplemental mechanism to aid traditional classroom education, and not as a
permanent stand-in setup.
In the present pandemic situation, the shift towards online education has taken place literally
overnight, and without much deliberation. One could argue that the unprecedented situation
warranted such a drastic switch over. Therefore, I do not find any fault with the approach of the
schools that have adopted digital technology for imparting education. However, it is necessary to
issue a note of caution here so that the modes and methods adapted during this extraordinary time
are not seen as the quintessential purpose of the Act.
3. The RTE Act, 2009 is focused on formal school education. Clause 3 of the Statement of Objects
and Reasons of the Act reveals the purpose and intent behind the Act to be: "(a) that every child has
a right to be provided full time elementary education of satisfactory and equitable quality in a formal
school which satisfies certain essential norms and standards. The scheme of the Act focuses on the
obligation of the State to establish schools, and the facilitation of formal education for all children in
a school building. This can be seen from the stress laid on the establishment of neighbourhood
schools in section 6 as well as sections 8(b), 9(b) and 10. The norms and standards prescribed in the
Act for provision of education specifically provide for the infrastructure of, and for a safe and
inclusive environment of a proper formal school - ideally in an all-weather building. The primary
aim of the Act is to ensure that every child gets admission in a brick-and-mortar school with a
classroom space shared with peers of a similar age-group, so as to foster a conducive environment
for learning. It is therefore essential to keep in mind that digital education is not a replacement for
formal classroom schooling, which is the primary goal of the Right to Education Act, 2009.
4. We must also realize that the use of digital media for teaching- learning processes is at a nascent
and evolving stage. The dissemination of education through video conferencing, in my opinion, is
not a mere extension of the physical classroom into a virtually-created space. Online learning
requires active engagement strategies and is not just limited to uploading and delivering content
over digital devices. It is a fundamentally different concept, and is still at an experimental stage. The
traditional black-board approach is not adequate in a virtual classroom, as this format demands
curating and designing of a different form of content that can be conveyed and assimilated on a
digital platform. Without face-to-face interaction, gathering and retaining the attention of students
for a prolonged time, and ensuring that the imparted education is understood effectively by each of
the attendee in a virtual classroom becomes a demanding task. Blending and integration of ICT in
elementary education requires strategic planning and building broad-based support amongst the

stakeholders. This radically different form of education is bound to pose numerous and complex
problems. Thus, in my view, the digitalization of elementary education, which targets children of
ages between 6 to 14 years, by restricting the child to be a passive receiver without an interactive
environment, needs deeper probe. However, this paradigm shift, in the current situation, has
happened rapidly. This mode seems to have taken the front seat in the unprecedented emergency
scenario we are placed in today. In fact, globally, skepticism is the underlying sentiment when it
comes to digital education. Nations are grappling to find the correct answers to deal with the present
situation. I would therefore say that we should approach the subject on a cautionary note.
5. I will also like to note that the New Education Policy, 2020 devotes considerable emphasis on the
importance of traditional school education. The MHRDs Pragyata- Guidelines for Digital education,
while listing out the advantages of digital/online education, recognizes that this format cannot
replace classroom learning. The Students' Learning Enhancement Guidelines prepared by the
National Council of Educational Research and Training (NCERT) also note that alternative modes of
education have limitations and do not ensure equitable learning. Though the Government of NCT
has adopted the Pragyata Guidelines, but the matter should not rest there. Pragyata Guidelines
come with a disclaimer that it is advisory in nature. States/UTs are required to come up with their
own guidelines by adopting/adapting/modifying the guidelines in accordance with their
requirements and assessment of the local situation. The localization of the content and its delivery
within the State should be decided based upon a thorough assessment of several critical factors,
such as the accessibility, geographical and socio-economic conditions of the target segment,
linguistic diversity, etc. Better and more efficient modes and methods must be explored from the
point of view of experts and researchers in the field, by establishment of specialized committees and
task forces. As of now, we have no insights about when the pandemic is going to end and whether
the next pandemic or a similar unprecedented situation is lurking round the corner. It is thus the
need of the hour that the government invests its resources into understanding the current
alternative modes available - their efficacy, methods of implementation, and then work towards an
inclusive, uniform system of administering digital education. Government should involve
educational and technological experts in the fields to review this emerging mode of education,
having regard to the ground realities so that a robust online/digital education system is developed.
Digital divide, right to education and non-discrimination in the present pandemic scenario
6. On this aspect, I would only emphasize: The preamble of our Constitution reminds us of the
solemn resolve to secure to all its citizens, social and economic justice and equality of status and
opportunity. To transform this vision into reality, Article 21A has been introduced in the
Constitution of India, followed by the promulgation of the RTE Act, 2009. The scheme of Article 21A
and the RTE Act rests on a twofold premise: to prevent financial and psychological barriers from
hindering access to primary education of children, and, non-discrimination in the imparting of
education. We live in a stratified society which has several economic layers. The school system
reflects what exists in the society. Children of the socially and economically weaker sections are
normally unable to secure an admission in private schools due to their unaffordable fees. The RTE
Act seeks to address this gap via section 12(1)(c) which mandates all private schools to reserve 25
per cent of their seats for children belonging to economically weaker sections and disadvantaged

group. The Act has thus paved the way for the weaker sections to seek admission in private schools
which would otherwise remain completely out of the reach of such children due to financial
constraints. This provision is aimed to reduce disparity, foster equality and to encourage an
inclusive education for all. The Act now empowers EWS students to seek admission in private
schools as a matter of right. Resultantly, children from the weaker sections and disadvantaged
groups can now study side-by-side with other children. It is envisaged that this integrated early
childhood education and mentoring in the schools would lay down the foundation of making
behavioral changes that would lead to reducing discrimination in our society.
7. Now, private schools have opted to hold virtual classrooms. The children from economically
weaker sections may not have the means to join such classes. Digital divide in our country is a
known fact, and is indeed inter-connected with economic disparity. The inequality in access to
technology widens such divide. In this scenario, conducting classes exclusively through video
conferencing mode inevitably leads to the creation of a huge gap in the education provided to the
haves, versus the have-nots. This imbalance in the imparting of education due to the non-
availability of gadgets, internet connectivity and modes of access, has the potential of pushing the
less-fortunate children outside the education system altogether. The digital enablement of EWS
students, is thus, in my opinion, absolutely necessary.
8. We must also acknowledge that because of the economic impact of the Covid-19 pandemic, there
could be a tendency amongst the underprivileged children to abandon education for work. This
likely fallout needs to be immediately addressed. Otherwise, the gap, between the learning
experiences of children from economically weaker sections as against the relatively privileged
children, will widen. The fact that EWS students are today offered education through a mode that is
based on this divide would further push them back. One of the many steps needed, involves
equipping such students with means to have a meaningful education. They need to have access to a
reliable internet connection to join virtual classrooms along with technological devices. The precious
right guaranteed by the Constitution of India and the RTE Act has to be replicated in the online
environment. The private unaided schools have a responsibility of removing all barriers for EWS
students that would hinder their access to education. The RTE Act also puts the onus on private
schools to promote inclusion and equality.
9. Non-discrimination is a significant aspect of the scheme of the RTE Act. Section 12(1)(c), as we
have seen, creates a special quota to the extent of 25 per cent seats being reserved for students from
EWS/DG categories. Section 8(c) of the RTE Act, 2009 places an obligation on the appropriate
government to ensure non-discrimination against a student belonging to a weaker section or
disadvantaged group. Further, Rule 11 of the Right of Children to Free and Compulsory Education
Rules, 2010 places an obligation upon the schools (referred to in Sub-Clauses (iii) and (iv) of Clause
(n) of Section 2 of the RTE Act) to ensure that children admitted in accordance with Clause (c) of
Sub-Section (1) of section 12 of the Act "shall not be segregated from the other children in the
classrooms nor shall their classes be held at places and timings different from the classes held for
the other children" and further, they "shall not be discriminated from the rest of the children in any
manner pertaining to entitlements and facilities such as textbooks, uniforms, library and
Information, Communications and Technology (ICT) facilities, extra-curricular and sports".

Therefore, both the Act as well as the Rules, read together place obligation upon the State as well as
the schools to ensure that there is no discrimination faced by any student in a classroom on any
ground whatsoever. Section 12 (1)(c) is well designed and cannot be restricted in its application, to
not apply to a situation when the schools have adopted technology as a medium to impart education.
10. The RTE Act lays down the material foundation for creating equal opportunities for everyone in
order to reach the ultimate goal of socio- economic justice. Good quality education translates into
better employment avenues. By ensuring that EWS students are admitted in private schools we can
strive to achieve socio-economic equality. The obligation cast upon the schools and the State, by law,
as provided under RTE Act, has to be appreciated in the right spirit. It is the responsibility of the
schools and obligation of the State to assist EWS students to overcome all constraints that deprive
them of meaningful education. I, therefore, concur with the judgment proposed by my brother
Manmohan, J.
11. That said, I sincerely hope that students are able to experience the joy of schooling with friends
and classmates in physical classrooms, very soon.
SANJEEV NARULA, J SEPTEMBER 18, 2020 rn/js/KA/sd

Justice For All Vs Government of NCT of Delhi Ors On 18 September 2020

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Justice For All vs Government Of Nct Of Delhi & Ors on 18 September, 2020

Delhi High Court

+ W.P.(C) 3004/2020 & CM APPLS. 10415-10417/2020, 10675/2020,

JUSTICE FOR ALL ..... Petitioner

GOVT. OF NCT OF DELHI & ORS. ..... Respondents

Mr. Harish Vaidyanathan Shankar,

Mr. Amit Bansal, Advocate with

Mr. Akhil Mittal, Standing Counsel

Mr. Sriharsha Peechara, Advocate

Mr. Harish Kumar Khinchi, Standing

Mr. Anil Grover, Standing Counsel

WP(C) 3004/2020 Page 1 of 94

Mr. Puneet Mittal, Sr. Advocate with

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Mr. Vasudha Bajaj , Mr.

Mr. H.L. Tiku, Senior Advocate with

Ms. Apoorva Pandey, Advocate for

Mr. Vedanta Varma and Ms. Mannat

Mr. Anirudh Bakhru with Mr. Ayush

Mr. Piyush Gupta, Advocate with

Mr. Sunil Gupta, Senior Advocate

% Reserved On: 02nd September, 2020

WP(C) 3004/2020 Page 2 of 94

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PRAYERS IN THE WRIT PETITION

(A) A child admitted in government School.

(B) A child admitted in non-minority aided school.

7. The amended prayer clause in the writ petition is reproduced hereinbelow:-

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i) an appropriate writ order or direction to respondents to ensure that the free

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xxx xxx xxx

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xxx xxx xxx

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Daily one worksheet with questions/tasks/activities in a maximum of one page.

xxx xxx xxx

For Cohorts 1 and 2:

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xxx xxx xxx

All Heads of schools are:

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This issues with the prior approval of the Competent Authority.

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i. 213th Parliamentary Standing Committee Report on The Right of Children to Free

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ARGUMENTS ON BEHALF OF RESPONDENT NO.2 /UOI

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Kendriya Vidyalaya Sangathan:-The Delhi Region, Kendriya Vidyalaya Sangathan has

b) Facebook: Live Classes were conducted by teachers.

c) YouTube: Teachers uploaded Videos lessons and informed students through

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a. Live classes are conducted b. Teachers uploaded assignments c. Assignments