Professional Documents
Culture Documents
V.
STATE OF X
...RESPONDENT
INDEX OF AUTHORITIES............................................................................................ii-v
II.
STATEMENT OF JURISDICTION..................................................................................vi
III.
STATEMENT OF ISSUES...............................................................................................vii
IV.
STATEMENT OF FACTS...............................................................................................viii
V.
SUMMARY OF PLEADINGS..........................................................................................ix
VI.
WRITTEN PLEADINGS...............................................................................................1-19
I.
II.
III.
THE
STATE
SHOULD
BE
DIRECTED
TO
PROVIDE
Page i
Paragraph
2. AIR
3. Anr.
Another
4. Ed.
Edition
5. etc.
Etcetera
6. HC
High Court
7. Honble
Honourable
8. i.e.
That is
9. ICESCR
10. Ltd.
Limited
11. MDMS
12. NCPCR
13. NHRC
14. No.
Number
15. Ors.
Others
16. p.
Page
17. Rs.
Rupees
18. RTE
Right To Education
19. SC
Supreme Court
20. SCC
21. SLP
22. U.N
United Nation
Page ii
Union of India
24. UDHR
25. v.
Versus
26. vs.
Versus
Books Referred:
1. Bupinder Zutshi, Mondira Dutta,Child Labour Rehabilitation in India,, Pentagon Press,
2003.
2. Dr. Devinder Singh, Child Labour& Right to Education, Central Law Publications, First
edition 2013.
3. Dr. J.J.R. Upadhaya, Administrative Law, Central Law Agency 7th edition.
4. Durga Das Basu, Shorter Constituion Of India, Lexis Nexis Butterworths Wadhwa
Publishers Nagpur, 14 Edition, 2010, Volume .
5. Justiice Palok Basu, Law Relating to Protection of Human Rights under the Indian
Constitution And Allied Laws, Modern Law Publications, 2007
6. M.P. Jain, Indian Constitutional Law, Wadhwa & Company, Nagpur, 6th ed.2010.
7. Pandey, J. N., The Constitutional Law of India, 49th ed.
8. V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow.2001.
9. Wade & Forsyth , Administrative Law, , Oxford University Press, 1994 9th edition, 2005.
Cases Referred:
1. Avinash Mehrotra vs Union Of India & Ors April 2009 ..10
2. Bandhua Mukti Morcha v. Union of India, (1984) SCR (2)67..12
3. Bhagat Raja V. Union of India AIR 1667 SC......9
4. Breen v. A. E. U., (1971) 2 Q.B. 175...8
5. Centre for Public Interest Litigation v. Union of India WRIT PETITION CIVIL 21 of
200415
6. CERC v. Union of India AIR 1995 SC3
7. Dalit Manav Uthan Sansthan vs Commissioner142 2007 DLT 497..............................16
8. Francis C. Mullin V. Administrator, Union Territory of Delhi 1981 SCR (2) 516...11
9. Harit Recyclers Association vs Union of India 3 JUNE 2010.. 12
10. K.T. Moopil Nayar v. State of Kerala 1961 AIR 552 SC....7
MEMORIAL FOR THE APPELLANT
Page iii
Johns
Teachers
Training
Institute
v.
Regional
Director
AIR
2003
SC.1
22. State of A.P. & Anr v. A.P. Pensioners Association & Ors
11th November
2005..7
Dictionaries Referred:
1. Blacks Law Dictionary (9th Ed. 2009).
2. Cambridge Dictionary of American English, Cambridge (UK) (2000).
Page iv
Rights
Page v
The appellant approaches the honorable Supreme Court of India under Article 136 1 of the
Constitution of India, 1950 which confers power on the Apex Court to admit any case and thus,
due to that power as conferred on the honorable Court the appellant appeals before the honorable
for the case from the judgment of the honorable High Court of State X.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the Armed Forces.
Page vi
Page vii
WHETHER
SECTION
10
OF
STATE
EDUCATION
RULES,
2014
IS
CONSTITUTIONAL?
A. That the legislature of the State has transgressed its powers.
B. That the section in itself violates the fundamental rights under Article 21 of the Indian
Constitution.
C. That the implementation of the section leads to arbitrary use of power by the State.
II.
III.
Page viii
II.
III.
Page ix
1) It is humbly submitted that the section 10 of State X Education Rules is unconstitutional and
the rules regarding the constitutionality check of the law were laid down by the Supreme
Court in the case of Namit Sharma v. Union of India2.
2) Thus, on the basis of the above judgment the appellant challenges the validity of the above
judgment on the following grounds:
A. That the legislature of the State has transgressed its powers.
B. That the section in itself violates the fundamental rights under Article 21 of the Indian
Constitution.
C. That the implementation of the section leads to arbitrary use of power by the State.
A. THAT THE LEGISLATURE OF THE STATE HAS TRANSGRESSED ITS POWERS
3) When a law is made by a body by virtue of its powers conferred on it by a statute, it is called
as a delegated legislation. The Supreme Court has observed in St. Johns Teachers Training
Institute v. Regional Director, NCTE3 that, What is permitted is the delegation of ancillary
or subordinate legislative functions, or, what is fictionally called, a power to fill up details.4
4) This provision casts a moral responsibility on every parent/guardian to admit their
children/wards to school, and ensure that children are not deprived of their right to
elementary education. This provision should be read together with the responsibility of
the appropriate Government and local authority to provide free and compulsory elementary
education in a neighbourhood school. It is not the intention of this provision to compel
2
Page 1
Rationale of the Parliament while enacting Right to Education( 25 th January 2015), available at:
http://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/RTE_Section_wise_rationale_rev_0.pd
6
It shall be the duty of every parent or guardian to admit or cause to be admitted his or her child or ward, as the
case may be, to an elementary education in the neighbourhood school.
7
A.I.R. 2001 DEL 212.(Quorum: Anil Dev Singh J.)
Page 2
M.P. Jain ,Indian Constitutional law, 1249,(Sixth Edition,Lexis Nexis Butterworths Wadhwa Nagpur,2010)
(1995) 6 S.C.C. 309
10
A.I.R, 1995 S.C.922
9
Page 3
11
12
Page 4
th
Page 5
Page 6
18
it was decided
that, The rules not only create a legal fiction but also provide the limitation in operation
thereof. In other words, all the consequences ordinarily flowing from a rule would be given
effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a
limitation on its operation, the consequences flowing from the legal fiction have to be
understood in the light of the limitation prescribed.
25) In the facts of the instant case the section 10 of the State X Education Rules also provides for
a limitation under the rule in form of reasonable ground so therefore the legal
consequences of the rule must be read in light with the limitation. In the instant case the
state has not taken into consideration the reasonable ground of danger to life as a
reasonable excuse and there after imposing penalty on parents is unreasonable and it is abuse
of power conferred on it and thus it is evident that due to this section the State is making an
excessive use of power. Therefore such rule that provides for no such ground of danger to
life as a reasonable ground and also which allows the State to make an excessive use of
power must be struck down. In the Current case is interpreting the section quite narrowly and
rejecting even Danger to life as a reasonable ground.
b) THAT THE STATE HAS MADE A COLORABLE USE OF POWER
26) What the state has done is colorable exercise of power. Here, the appellant presents an
analogy between the present case and the case of K.T. Moopil Nayar v. State of Kerala19,
where the State had imposed land tax at the rate of Rs. 2 per acre on all lands irrespective of
the Quality of land, which was a substantial matter to be seen while imposing tax and a land
owner was prescribed to make payment of tax. The appellant who was having income of Rs.
3100 was held liable to pay Rs 54000- under the operative provisions. The Supreme Court
struck down the Act, and held that it was confiscatory in character and that the Legislature
had merely adopted a device and a cloak to confiscate the Property.
27) In the light of statement of facts the state is imposing undue penalty and fines on the parents
therefore state have acted in an arbitrary manner and had made misuse of his power
18
19
Page 7
Page 8
Supra 6
A.I.R 1967 S.C. 1606
26
Supra, 615-617
25
Page 9
27
. In the same case, it was averred that the State is duty bound to
protect and secure lives of students across the country by ensuring the minimum safety
standards. In view of the importance of Article 21A, it is imperative that the education which
is provided to children in the primary schools should be in the environment of safety. It is the
fundamental right of each and every child to receive education free from fear of security and
safety. The children cannot be compelled to receive education from an unsound and unsafe
building. The right to education requires that a child study in a quality school, and a quality
school certainly should pose no threat to the childs safety. The constitution likewise
provides meaning to the word education beyond its dictionary meaning. Parents should not
be compelled to send their children to dangerous schools, nor should their children suffer
compulsory education in unsound buildings.
39) In the case of Rifahul Muslimeen Education ... v. State Of Karnataka And Ors.,28 the learned
judge said that I am of the view that a hungry stomach cannot be expected to get good
education with attention and it is for this reason that the Government has chosen to introduce
a Welfare Scheme providing food to the empty stomach by way of Welfare Scheme in the
larger interest of Society.
40) Further the judgment reads Before concluding, I deem it proper to observe that such welfare
measures have to be constantly supervised and inspected in the larger interest of the society
as a whole. I am sure that the authorities in charge would be visiting/inspecting/supervising
27
Page 10
29
30
Page 11
31
32
Page 12
Rights of Children to pay Compensation (25 th January 8:15P.M.) available at: http://hrln.org/hrln/child-rights/pilsa-cases/583-delhi-high-court-orders-government-to-pay-compensation-to-children-for-being-served-contaminatedfood-under-mid-day-meal-scheme-.html#ixzz3PZzRMELg
34
Penalties for non-admission and/or non-attendance of wards: Any parent/guardian of a child/ward, who is in
the age group of 6-14 years, is found to have not admitted or sent his/her child/ward to a school will be penalized.
He or she may be fined Rs. 1000 for non-admission of his/her child/ward in an academic year and Rs 100 per day
for not sending the admitted child/ward to school on a working day without any sufficient reason; but in no case the
fine for non-attendance will exceed Rs. 1000 per month. Penalty for non-admission or non-attendance of a
child/ward may be waived on reasonable ground to be recorded in writing.
35
Facilities to be provided by Schools: All schools, whether newly established or in existence should provide the
following facilities after the coming into force of the RTE Act in order to start or continue its operation:
..
(f) provision for adequate and proper midday meal to the children in the school.
Page 13
Page 14
36
Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The
State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of
public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of
the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
37
WRIT PETITION (CIVIL) NO. 21 OF 2004
38
A.I.R. 1958 S.C. 956
39
A.I.R .1980 S.C. 1789
Page 15
Page 16
41
The Right Of Children To Free And Compulsory Education Act, 2009, (26 th January 2015), available at:
http://socialissuesindia.files.wordpress.com/2010/07/right-to-education-act-2009.pdf
Page 17
Page 18
44
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living
conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this
effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from
hunger, shall take, individually and through international co-operation, the measures, including specific
programmes
Page 19
Whereof in the light of facts of the instant case, written pleadings and authorities cited, it is
humbly prayed before this Hon'ble Supreme Court that it may be pleased to hold, adjudge and
declare:
Pass any other order, which the court may deem fit in light of the facts of the case and justice,
equity and good conscience.
Page x