Delhi High Court
Social Jurist, A Civil Rights ... vs Government Of Nct Of Delhi & Ors. on 3 July, 2023
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 03rd JULY, 2023
IN THE MATTER OF:
+ W.P.(C) 5669/2023
SOCIAL JURIST, A CIVIL RIGHTS GROUP ..... Petitioner
Through: Mr. Ashok Agarwal, Mr. Kumar
Utkarsh, Mr. Manoj Kumar,
Advocates
versus
GOVERNMENT OF NCT OF DELHI & ORS ...... Respondents
Through: Mr. Santosh Kumar Tripathi,
Standing Counsel for GNCTD with
Mr.Pradyumn Rao, Ms. Aakriti
Mishra, Mr. Utkarsh Singh,
Ms.Mahak Rankawat, Advocates for
R-1 & R-2
Mr. Anurag Ahluwalia, CGSC with
Mr.Tarveen Singh Nanda, GP for
UOI
Ms. Avnish Ahlawat, Standing
Counsel for GNCTD with Ms. Tania
Ahlawat, Mr. Nitesh Kumar Singh,
Ms.Palak Rohmetra, Ms. Laavanya
Kaushik, Ms. Aliza Alam, Advocates
for R-3
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SATISH CHANDRA SHARMA, CJ
1. The Petitioner, Social Jurist, A Civil Rights Group, is an organisation
of lawyers and social activists has approached this Court by filing the instant
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By:SHAZAAD ZAKIR
Signing Date:04.07.2023
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Public Interest Litigation (PIL) for issuance of appropriate writ, order or
direction directing the Respondents to expedite the finalization of Delhi
School Education (Amendment) Bill, 2015, (hereinafter referred to as 'the
Bill') which prescribes for prohibition of screening procedure in the matter
of admission of children at pre-primary level (nursery/pre-primary) in
schools.
2. It is stated that the Bill banning screening procedure in nursery
admissions in schools, was prepared in the year 2015 and for the last seven
years without any justification and against public interest, the Bill is hanging
between Central Government and Delhi Government and is not being passed
by the Respondents. It is stated that the delay in proceeding further acts
contrary to the interest of children in the matter of admission to nursery/pre-
primary in private schools and has resulted in arbitrary procedure being
adopted by different schools in matters of admission of children at pre-
primary level.
3. The Petitioner seeks to rely on the provisions of the Right of Children
to Free and Compulsory Education Act, 2009 (hereinafter referred to as „the
RTE Act‟) to contend that in order to implement the provisions of the RTE
Act, it was felt necessary to do away with the screening procedure for
admission of children to nursery/pre-primary classes. It is stated that the Bill
attempts to ensure that there is no discrimination amongst children in the
matter of admission to the pre-primary classes and also endeavours to check
commercialisation of education at the stage of admission of children to the
schools.
4. The Petitioner states that in a reply dated 11.04.2023 from
Respondent No.2 to a query under the Right to Information Act, 2005, it has
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been revealed that the Bill is pending between the State Government and the
Central Government. The Petitioner also places reliance on a judgment of
the Division Bench of this Court in Social Jurist, A Civil Rights Group v.
Govt. of NCT of Delhi & Anr., 2013 (134) DRJ 529 (DB), wherein Division
Bench of this Court has held that the Government must consider the
applicability of the Right to Education Act to nursery classes as well.
5. The Petitioner also states that the Apex Court vide its Order dated
24.04.2023 in W.P.(C) 333/2023 has held that the Governor must give
assent to any Bill that is placed before him or return the Bill if it is not a
Money Bill together with a message for re-consideration to the House or the
Houses of the State Legislature and the expression given "as soon as
possible" in Article 200 of the Constitution of India has a significant
constitutional content and must be borne in mind by the constitutional
authorities.
6. Heard learned Counsel for the parties and perused the material on
record.
7. Article 196 to 201 of the Constitution of India deals with the
legislative procedures regarding passing of Bills. Article 197 to 199 of the
Constitution of India deals with Money Bills, which is not the subject matter
of the present writ petition.
8. Article 200 of the Constitution of India deals with assent of bills,
which reads as under:-
"200. Assent to Bills.- When a Bill has been passed by
the Legislative Assembly of a State or, in the case of a
State having a Legislative Council, has been passed by
both Houses of the Legislature of the State, it shall be
presented to the Governor and the Governor shall
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declare either that he assents to the Bill or that he
withholds assent therefrom or that he reserves the Bill
for the consideration of the President:
Provided that the Governor may, as soon as possible
after the presentation to him of the Bill for assent,
return the Bill if it is not a Money Bill together with a
message requesting that the House or Houses will
reconsider the Bill or any specified provisions thereof
and, in particular, will consider the desirability of
introducing any such amendments as he may
recommend in his message and, when a Bill is so
returned, the House or Houses shall reconsider the Bill
accordingly, and if the Bill is passed again by the
House or Houses with or without amendment and
presented to the Governor for assent, the Governor
shall not withhold assent therefrom:
Provided further that the Governor shall not assent to,
but shall reserve for the consideration of the President,
any Bill which in the opinion of the Governor would, if
it became law, so derogate from the powers of the High
Court as to endanger the position which that Court is
by this Constitution designed to fill."
9. Article 200 of the Constitution of India provides that when a Bill is
passed by a State Legislature, it is presented to the Governor and the
Governor shall declare either that he assents to the Bill or that he withholds
the assent therefrom or that he reserves the Bill for the consideration of the
President for assent.
10. The proviso to Article 200 of the Constitution of India provides that if
the Governor after the presentation of the Bill to him for assent, returns the
Bill together with a message to the House/Houses for reconsideration of the
Bill or any specified provisions thereof and, in particular, he can also
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consider desirability of introducing any such amendment as he may
recommend in his message. Till the assent is not granted, the legislative
process is not completed. It is well settled that Courts cannot issue a writ of
mandamus to the Governor directing the Governor to pass the Bill and it is
always for the Governor to give his assent or withhold his assent to any Bill
however desirable the legislation may be.
11. The High Court of Allahabad in Chotey Lal v. The State of Uttar
Pradesh & Ors., AIR 1951 All 228, has observed as under:-
"15. Article 200 of the Constitution lays down that
after a bill has had a passage through both Houses of
the Legislature of the State, it shall be presented to the
Governor & that it shall be open to the Governor to
declare at that stage that either he assents to the bill or
that he would withhold assent therefrom or that he
reserves the bill for the consideration of the President.
What the Governor will do is a matter which is
peculiarly within his discretion. So, in exercising it, he
will no doubt feel bound to act on the advice of his
Ministers. His constitutional advisers are the Chief
Minister & the other Ministers who form the State
Cabinet what is ordinarily termed "the Govt. of the
day". Courts of law have no jurisdiction to enquire into
or control the nature of the advice tendered by the
Chief Minister or the Cabinet or a Minister to the
Governor in regard to a proposed piece of legislation.
This principle is so well established that no authority is
needed in support of it.
xxx
19.... In enacting Article 13(2) the Indian Constituent
Assembly has merely laid down the limits to which
legislation can go & does not authorise the Courts to
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interfere with that, legislation before its will has been
ascertained.
xxx
32. As pointed out already, the limitation on the power
of a Court to issue a writ or direction to a Legislature
in connection with the tatter's proceedings arises from
the provisions of the Constitution (Articles 105 & 194),
& from the inherent powers possessed by the
Legislature as discussed above. Legislative enactments
which take away or abridge the rights conferred by
Part III of the Constitution can only be declared void
after they have been made & that is the only remedy in
such cases for the enforcement of the rights conferred
by Clause (2) of Article 13. I have no doubt that we
have no power to issue the writ or direction prayed
for."
12. The Apex Court in State of Jammu & Kashmir v. A R Zakki & Ors.,
1992 Supp (1) SCC 548, has observed as under:-
"10. In our opinion there is considerable merit in this
submission. A writ of mandamus cannot be issued to
the legislature to enact a particular legislation. Same
is true as regards the executive when it exercises the
power to make rules, which are in the nature of
subordinate legislation. Section 110 of the J & K
Constitution, which is on the same lines as Article 234
of the Constitution of India, vests in the Governor, the
power to make rules for appointments of persons other
than the District Judges to the Judicial Service of the
State of J & K and for framing of such rules, the
Governor is required to consult the Commission and
the High Court. This power to frame rules is legislative
in nature. A writ of mandamus cannot, therefore, be
issued directing the State Government to make the
rules in accordance with the proposal made by the
High Court." (emphasis supplied)
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By:SHAZAAD ZAKIR
Signing Date:04.07.2023
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13. We agree with the view taken by the High Court of Allahabad. It is
not proper for this Court to issue any kind of writ to the Governor and
interfere in a legislative process whether to accept or reject a Bill within any
timeframe. It is not proper for a High Court while exercising its jurisdiction
under Article 226 of the Constitution of India to direct a Governor who is a
constitutional authority to set a timeframe in matters which come purely
within the domain of the Governor. In the considered opinion of this Court,
even though the Bill has been passed by the House, it is always open to the
Governor to agree or to send the Bill back to the House and this Court ought
not to pass a writ of mandamus directing the Governor to act by passing a
writ.
14. A perusal of the above judgments shows that after the Bill had a
passage through the House of Legislature of a State, it is presented to the
Governor and it is for the Governor to declare at that stage whether he gives
assent or he withholds the assent or refers the Bill to the President for assent.
What the Governor does is peculiarly within his discretion and, exercising
his discretion, he cannot feel bound on the act and advice of his Ministers.
Courts cannot control or interfere in this procedure and cannot direct the
Governor or pass a writ to the Governor to grant assent or desist from
granting assent. Article 200 of the Constitution of India within its fold
indicates that the Governor must as soon as possible after the presentation of
the Bill to him for his assent either return the Bill together with a message to
the House/Houses to reconsider the Bill or any specified provision thereof.
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By:SHAZAAD ZAKIR
Signing Date:04.07.2023
13:02:30
15. In view of the fact that mandamus as prayed for cannot be granted, the
writ petition is rejected as not maintainable, along with pending
application(s), if any.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J
JULY 03, 2023
hsk
Signature Not Verified
By:SHAZAAD ZAKIR
Signing Date:04.07.2023
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