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Synopsis

A division bench of Justices Abhay S Oka and Pankaj Mithal of the Supreme Court today directed the Uttar Pradesh government to look into counselling options for the child from Muzaffarnagar to deal with trauma caused to him after she was slapped by his classmates on instructions of their teacher.

Advocate Shadan Farasat informed the bench that the child's father has submitted an affidavit. "A continuous counselling is required..whichever school the child joins..", Farasat added.

When the bench was informed that the child refused to come to the counselling centre, the bench said, "This is the problem with you, how can you expect the child to visit..if this is the approach, we will ask NIMANS to go and counsel..Mr. Nataraj you please find out if such an institution is available..you should not consider this part of litigation as adversarial..", court added.

Court also took on record the State's Education Department affidavit. "The investigation is complete, Section 295 has been added and sanction is awaited..", the bench added.

Last month, the Supreme Court had directed the Uttar Pradesh government to nominate a Senior IPS Officer for supervising the investigation into the recent incident of a Muslim child being slapped in Muzaffarnagar, Uttar Pradesh.

"We expect the State Government/senior Police Officer to submit the compliance reports on both aspects within a period of four weeks from today", Court had ordered.

The bench further noted the long delay on part of the police in registering an FIR and the fact that offences only under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ("JJ Act”), and Sections 323 and 504 of the Indian Penal Code, 1860 (“IPC”) have been invoked.

Noting the petitioner's submission that in view of the complaint made by the victim child’s father, even Section 153A of the IPC will have to be applied, the bench said, "The Police cannot ignore the communal angle which is reflected in the Complaint."

On objections being raised on petitioner Tushar Gandhi's locus by ASG KM Nataraj, stating that he cannot make capital of the fact that he is the great-grandson of Mahatma Gandhi, Court said, "In fact, in a case like this, the State should not be really concerned with the locus of the petitioner inasmuch as this is a case not only of the failure to effectively set the criminal law in motion but also a case where there may be a violation of the fundamental right of the victim under Article 21A of the Constitution of India as well as violation of the rights under the provisions of the Right of Children to Free and Compulsory Education Act, 2009. Moreover, we find that there may be a breach of the provisions of the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011.."

Court further relied on the allegation that the teacher asked the other children to slap the victim child because he belonged to a particular minority community, and said, 

"When the object of the RTE Act is to provide quality education, unless there is an effort made to inculcate the importance of constitutional values in the students, especially the core values of equality, secularism and fraternity, there cannot be any quality education. There cannot be quality education if, in a school, a student is sought to be penalised only on the ground that he belongs to a particular community. Thus, there is a prima facie failure on the part of the State to comply with the mandatory obligations under the RTE Act and the Rules framed thereunder."

A further direction has been issued to the State Government to ensure that proper counselling is extended to the victim through an expert child counsellor.

"Even the other students, who were involved in the incident, in the sense that they allegedly followed the mandate issued by the teacher and assaulted the victim, need counselling by an expert child counsellor. The State Government will take immediate steps to do the needful by providing services of an expert child counsellor", Court has added.

Observing that State cannot expect the child to continue in the same school, Court has asked it to make proper arrangements for providing quality education to the victim in terms of the provisions of the RTE Act.

A division bench of the Supreme Court had issued notice on said plea on September 6, 2023. Controversy erupted after a video of the incident went viral on social media. Notably, the accused teacher, Tripta Tyagi, had referred to the boy’s faith and asked his classmates to beat him hard.

Tyagi, the teacher concerned was booked under Sections 323 (causing hurt) and 504 (intentional insult with intent to provoke breach of peace) of the Indian Penal Code

The National Commission for Protection of Child Rights has also asked the Uttar Pradesh Police to lodge a first information report (FIR) against Tyagi and sought responses from the concerned District Magistrate and Superintendent of Police.

Case Title: Tushar Gandhi vs. State of Uttar Pradesh and Ors