Muzaffarnagar School Slapping | 'Child Is So Traumatised; You Expect Him To Come To Counselling Centre' : Supreme Court To UP Education Dept

A bench of Justices Abhay S Oka and Pankaj Mithal was hearing a public interest litigation (PIL) filed by activist Tushar Gandhi seeking a proper and time-bound investigation into the incident. The case relates to a primary school teacher in Uttar Pradesh's Muzaffarnagar instructing schoolchildren to slap their Muslim classmate, a video of which became viral in the social media in August.

In September, the court directed the Muzaffarnagar police superintendent to submit a report on the investigation’s progress and the steps taken to protect the minor victim, while issuing notice. During the last hearing, after perusing the police superintendent's report, the bench expressed dissatisfaction with the Uttar Pradesh police's handling of the case, particularly over the delay in filing a first information report (FIR) and the omission of allegations of communal hatred from it. Consequently, the court ordered that a senior police officer investigate the case. The state government has further been asked to provide expert counselling to the victim, as well as the other children involved in the incident, and to provide facilities to the victim in terms of the Right to Education Act and Article 21A of the Constitution. Compliance reports have been sought before the next date of hearing.

Notably, the court also noted a "prima facie failure on the part of the State" to adhere to the Right to Education Act and rules, which prohibit the physical and mental harassment of students and their discrimination based on religion and caste. The bench remarked that if the allegations were true, it should shock the conscience of the State. It also observed that there cannot be any quality education if a student is sought to be penalised only on the ground that they belongs to a particular community.

Today, the bench revealed that while the home department had filed a status report, the department of education had yet to file its affidavit. The counsel appearing on behalf of the latter submitted that their affidavit was, however, ready to be filed. Additional Solicitor-General KM Nataraj also pointed out as per the court's earlier order, the inspector general of Meerut had also submitted their report. The law officer told the bench that the investigation has been completed and charges under Section 295A (outraging religious feelings or insulting religious beliefs) of the Indian Penal Code and the second proviso to Section 75 (punishment for cruelty to child) of the Juvenile Justice (Care and Protection of Children) Act, 2015 had been added. "Government sanction for prosecution under Section 295A is awaited," ASG Nataraj said.

In response, the court directed the government to immediately decide the application for prior sanction under Section 295A of the Indian Penal Code. 

Additionally, Advocate Shadan Farasat, appearing for the petitioner, pointed to the trauma caused to the child as a result of the incident to insist on a kind of counselling other than the one the state government has been providing -

"The child's father contacted us after reading about this petition on the news. He actually came and met us. The child is extremely traumatised. I have an affidavit from him. He is there in court as well. With permission of the court, I'll hand over the affidavit. As a lawyer, I personally met the child. He was unwilling to speak to any stranger. He will require counselling of a different kind, perhaps continuous counselling by teachers in whichever school he is admitted..."

The counsel for the education department informed the bench that a committee of three secretaries has been formed to provide counselling. "Are secretaries to the government competent to give counselling? That has to be done by a child counsellor," Justice Oka promptly shot back.

"The committee is composed of three doctors who are secretaries. Their names are Arpan Jain, Manoj Kumar, and Kapil Atreya. They are child psychologists," the counsel explained. He added, "They have visited the child's home. We have been informed that the child is introverted since the beginning but we have been making efforts. The child was not coming forward to the counselling centre, so we have requested them to come there."

"See, this is the problem with you. Look at the affidavit. The child is so traumatised. You expect him to come to the counselling centre?" Justice Oka asked, before directing ASG Nataraj to 'seek instructions' on any expert agency or organisation like National Institute of Mental Health and Neurosciences (NIMHANS) or the Tata Institute of Social Studies (TISS) working in the sector of child welfare. "We will entrust the work to them. Otherwise this is the approach. That they expect the child and his parents to the counselling centre. What we will do is, we will appoint an institution like NIMHANS or TISS and ask them to go there and provide counselling," the judge said.

"We will find out," the additional solicitor-general assured.

"This part of the litigation should not be taken as adversarial," Justice Oka said, reiterating a sentiment expressed by him during earlier hearings. Before adjourning the hearing until next Monday, Justice Oka pronounced, "We are putting the state to the notice that we may consider appointing an expert agency for the purposes of counselling not only the victim but the other children involved in the alleged incident."

Background

The controversy is over a private school teacher, Tripta Tyagi, in Muzaffarnagar, Uttar Pradesh instructing her students to physically assault a seven-year-old Muslim student – ostensibly as punishment for his poor performance in multiplication tables – while making communal remarks, prompting nationwide outrage. In a video that went viral last month, Tyagi can be heard directing students to slap the boy one by one. As the child is slapped and cries, Tyagi is heard making offensive remarks about ‘Mohammedan children’.

Following the incident, a first information report (FIR) was registered against Tyagi on August 26 under various sections of the Indian Penal Code, including Section 323 (punishment for causing voluntarily hurt) and Section 504 (intentional insult with intent to provoke breach of peace). In August, the National Human Rights Commission (NHRC) also took suo moto cognizance of the incident and issued notices to the UP government’s chief secretary and the director general of police, within days of a complaint being filed by UP-based lawyer SM Haider Rizvi. The commission has called for a detailed report on the matter within four weeks and expressed concern about the violation of the victim’s human rights. It has also requested information on actions taken against the teacher, the status of the FIR, compensation to the affected family, and preventive measures to avoid such incidents in the future.

In September, social activist and Mahatma Gandhi’s great-grandson Tushar Gandhi approached the Supreme Court, calling for an independent and time-bound probe into the incident and the prompt registration of FIRs against those responsible. In his petition filed through Advocate-on-Record Shadan Farasat, Gandhi has urged the court to direct an investigation of offences under the Indian Penal Code, including that of promoting enmity between different groups based on religion and uttering words with the deliberate intent to wound religious feelings, as well as various offences under the Juvenile Justice (Care and Protection of Children) Act, 2015.

Case Details

Tushar Gandhi v. State of Uttar Pradesh | Writ Petition (Criminal) No. 406 of 2023