TEAM CODE:-04

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL)

NATIONAL MOOT COURT COMPETITION

2021.

BEFORE THE HON'BLE SUPREME COURT OF HODU

CASE NO.______/201X

JURISDICTION UNDER ARTICLE-32 OF CONSTITUTION OF HODU, 1950

WRIT PETITION NO.______/201X

___________________________________________________________________________

NGO (EDUCATION RIGHTS FOR YOU)

VERSUS

UNION OF HODU

___________________________________________________________________________
___________________________________________________________________________

CLUBBED WITH

WRIT PETITION NO.______/201X

___________________________________________________________________________

DR. OMPRESS

VERSUS

UNION OF HODU

__________________________________________________________________________________
__________________________________________________________________________________

WRITTEN SUBMISSION FOR THE APPELLANTS

m[Type text] Page 1

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

TABLE OF CONTENTS

S.NO PARTICULARS PAGE NO.

1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 5

4. STATEMENT OF FACTS 7-8

5. ISSUES RAISED 6

6. SUMMARY OF ARGUMENTS 9

7. ARGUMENTS ADVANCED 10-25

8. PRAYER 26

MEMORIAL ON THE BEHALF OF PETITIONER 2

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

LIST OF ABBREVIATIONS

Serial No. Abbreviations Full Form

1. AIR All India Reports

2. Art. Article

3. CRFCE Children’s Right to Free and

Compulsory Education

4. CESCR Committee Education Social

Cultural Rights

5. EWS Economic Weaker Sections

6. ICCPR International Covenant on

Civil and Political Rights
7. ICT Information Technology

8. GATT General Agreement on

Trade and Tariffs
9. MDMS Mid-Day Meal Scheme

10. NEP New Education Policy

11. Ors. Others

12. RTE Right to Education

13. UDHR Universal Declaration on

Human Rights

14. UN United Nations

15. UNHR United Nation on Human

Rights
16. UNESCO United Nations Educational
Scientific and Cultural
Organization
17. UOI Union of India

18. AIR All India Report

19. Art. Article

MEMORIAL ON THE BEHALF OF PETITIONER 3

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

INDEX OF AUTHORITIES

Case Laws
1. Unni Krishnan J.P. &Ors. V. State of Andhra Pradesh &Ors. 1993 AIR 2178
2. Environmental and Consumer Protect Foundation v. Delhi Administration, 2012(4)
SCALE 24
3. State of Tamil Nadu v. K. Shyam Sunder, AIR 2011 SC 3470
4. Mohini Jain v. State of Karnataka 1992 AIR 1858
5. Vincent Panikurlangara v. Union of India 1987 AIR 990
6. Vishakha v. State of Rajasthan AIR 1997 SC 3011
7. MaganbhaiIshwarbhai v. Union of India 1969 AIR 783
8. State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1952) SCR
889
STATUES REFERRED
1. Constitution of India, 1950
2. Children’s Right to Free and Compulsory Education, 2009
3. Protection of Human Rights Act, 1993
4. Online Learning Ordinance, 2020
INTERNATIONAL INSTRUMENTS
1. Universal Declaration on Human Rights, 1948
2. International Covenant on Civil and Political Rights, 1966
3. United Nations Convention on Child Rights, 1989
4. Committee on Economic, Social and Cultural Rights, 1999
5. United Nations Educational, Scientific and Cultural Organisation, 1945.
BOOKS REFERRED
1. Indian Constitutional Law, M.P. Jain (7th ed., Lexis Nexis Butterworth Wadhwa
Publication, Nagpur, 2016)
2. D.D. Basu Commentary on the Constitution of India (8 th ed. Lexis Nexis Butterworth
Wadhwa Pub., Nagpur, 2008)
3. J. N. Pandey Constitutional law (55th ed. Central law Agency, Allahabad)
DATABASES REFERRED
1. www.manupatra.com
2. https://scconline.com
3. https://ssrn.com
4. https://www.merriam-webster.com/legal
5. www.indiankanoon.com

MEMORIAL ON THE BEHALF OF PETITIONER 4

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

STATEMENT OF JURISDICTION

The jurisdiction of this case falls under Article 32 of the constitution which deals with
remedies for enforcement of rights conferred by this part.1

1
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this
Constitution.

MEMORIAL ON THE BEHALF OF PETITIONER 5

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

STATEMENT OF ISSUES

THE APPEALANT RESPECTFULLY PLEADS BEFORE THE HON’BLE

SUPREME COURT THE FOLLOWING ISSUES:
ISSUE-1

1 – WHETHER THE 2020 ONLINE LEARNING ORDIANCE IS

CONSTITUIONAL?

ISSUE-2

2 – WHETHER A STATE CAN BE HELD TORTIOUSLY LIABLE FOR ITS

FAILURE TO ACT ACCORDING TO THE CRFCE ACT READ WITH ARTICLE
XXI-A OF THE CONSTITUION?

2a- WHETHER THE STATE IS LIABLE TO PROVIDE FINANCIAL

ASSISTANCE AND FREE DIGITAL ACCESSORIES FOR ENSURING THE
UNIVERSALITY OF EDUCATION?

ISSUE-3

3- WHETHER THE POLICIES OF STEATE OF HODU ARE IN VIOLATION OF

INTERNATIONAL TREATIES AND AGREEMENTS?

MEMORIAL ON THE BEHALF OF PETITIONER 6

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

STATEMENT OF FACTS

A – INTRODUCTION TO THE STATE OF HODU:-

HODU a federal state attained its freedom in 1947.After independence the constitution of
HODU was drawn up by the constituent assembly:
 Initially summoned in August 1947
 Draft constitution in February 1948
 Adopted in 1949
 Enforced in January 1950
The constituent assembly while drafting constitution was aware of various regional and
international development that were taking place in area of human rights and wisely
incorporate provisions of various international instruments.
B]- In the HODU constitution the civil and political rights were included as enforceable
rights in part c of the constitution as “fundamental rights” and most of the economic, social
and cultural rights were included in the judicially non enforceable but cognizable part d, the
DPSP as “instrument of instruction” to state.
C]- One of the provision of DPSP is Article 45 which states:-
“The state shall endeavor to provide within the period of 10 years from the commencement of
this constitution to free and compulsory education for all.

B – RIGHT TO EDUCATION:-
A]- Since independence, various commission and boards was constituted in the state of
HODU i.e. The education commission 1948, central advisory board of education[CABE],
AHCE etc. which recommended the deadlines for the state to provide free and compulsory
education to all at international level also. Right to education has been declared as basic
human rights through various conventions i.e. UDHR, UNESCO, convention on rights of
child 1989 etc.
B]- Keeping in view all these developments , the SC of HODU in its two significant
judgment held the right to education as a fundamental right and the SC observed that RTE is
the essence of the right to life and directly flows and is interlinked with it, and life living with
dignity can only be assured when there is significant role of education.
C]- Consequently the 86th amendment Act was adopted in 2002, Article XXI-A was inserted
in part c of constitution which is read as:-
“The stat3e shall provide free and compulsory education to all children in such manner as the
state may, by law, determine.

MEMORIAL ON THE BEHALF OF PETITIONER 7

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

C- CHILDREN’S RIGHT TO FREE AND COMPULSORY EDUCATION

ACT 2009[CRFCE]:-
A]- In august 2009, the CRFCE Act is notified which make it obligatory for the state to
ensure that every child has a fair chance and access to education.
B]- Sec III of the act provides that the state shall take steps to ensure maximum exposure of
the students to the use of internet as a tool of teaching-learning and as a measure of
accessibility to RTE.
D – THE COVID-19 PANDEMIC AND IMPACTS OVER EDUCATION:-
A]- Due to COVID-19 pandemic, the government around the world adopted extra ordinary
measures including lockdown, which inadvertently affected people’s livelihoods, access to
health care, food and education.
B]- The government of HODU introduced distance learning using online learning programs.
The 2020 online learning ordinance, issued by central government required the education
institutions to create e-contents and e-notes for the students so that they could have access to
e-readers for online learnings.
C]- The pandemic had a profound impact on education due to the closing down of schools
which resulted in decline in learning and increase in dropouts. Higher inequalities due to lack
of access to mobile/laptops and internet facilities and consequently for many children
academic learning has come to halt.

E- FILLING OF WRIT PETITIONS:-

Pursuant to the report of committee seeing the impact of COVID-19 on the education sector
two writ petitions were filed in SC by NGO[education right foe you] and Dr. Ompress
contending that e-learning has detrimental to the core objective of RTE.
The two petitions are clubbed by the SC and posted for final hearing.

MEMORIAL ON THE BEHALF OF PETITIONER 8

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

SUMMARY OF ARGUMENTS

Issue -1 - Whether the 2020 Online Learning Ordinance is constitutional?

It is submitted to the honorable SC that the 2020 online learning ordinance is
unconstitutional. Because around, 22% citizens of HODU still live below the poverty line.
The people in HODU are still technologically challenged. In a country where the common
man does not even have money and resource to sustain himself and his family, he is expected
to make arrangements for electronic gadgets and internet connection to make sure his
children get access to the basic right of education. So, the 2020 online learning ordinance is
unconstitutional.
Issue – 2 –Whether a State can be held tortuously liable for its failure to act according
to theCRFCE Act read with Article XXI-A of the Constitution.
It is submitted to the honorable SC that the state can be held tortuously liable for its failure to
act according to the CRFCE Act read with Article 21-A2 of the constitution which states “
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”.
RTE is a basic human right recognized by various international instrument 3 as well as
constitution of HODU.
So, state is tortuously liable for its failure to act according to the CRFCE act.
Issue-2A -Whether the State is liable to provide financial assistance and free digital
accessories for ensuring the universality of education?
It is submitted to this court that State is liable to provide financial assistance and free digital
accessories for ensuring the universality of education because Article 7 and 8 of RIGHT OF
CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 mentioned in
CHAPTER 3 of the act.
Issue-3- Whether the policies of the State of HODU are in violation of international
treaties and agreements?
It is submitted to this court that because HODU may be signatory to many international
agreements and treaties but some of the commitments made to the world community do not
find the desired application within the country because of the gaps and lack of clear – cut
direction within Hodun jurisprudence.

2
Added under 86th amendment act,2002
3
Example – UDHR,1948

MEMORIAL ON THE BEHALF OF PETITIONER 9

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

ADVANCE ARGUMENTS

ISSUE-1

WHETHER THE 2020 ONLINE LEARNING ORDIANCE IS

CONSTITUTIONAL?

INTRODUCTION:-
The 2020 online learning ordinance is unconstitutional.HODU began a bit late in the race of
Online Education. The wave of a digitalized education system, basically pertaining to Higher
education, began in the form of Correspondence Courses started by Dane University in 1962.
This was done to satisfy the hunger of higher education in the newly liberated country.
Encouraged by the success, the Education Commission recommended the expansion of
correspondence education for various purposes. Soon after the University Grants
Commission formulated and adopted guidelines to incorporate the courses in Indian
Universities.
With the advent of corona virus, the need of distance learning through online mode just
increased in a multifold manner. Privilege it turned into necessity and that's where the
problem began. An upsurge in the number of people accessing the online mode of education
increased its reach but decrease its effectivityand went on to create more problems than
solutions.

CURRENT SCENARIO4:-
Around, 22% citizens of HODU still live below the poverty line. The people in HODU are
still technologically challenged. In a country where the common man does not even have
money and resource to sustain himself and his family, he is expected to make arrangements
for electronic gadgets and internet connection to make sure his children get access to the
basic right of education. An online study was conducted by Hindustan Times in the times of
pandemic. The study revealed. Lack of access to the Internet and devices has also created a
gap in digital literacy. 76% of students in India did not know how to use a computer. “The
share of those who did not know how to use the Internet was 74.5%.
Once again, this gap rises with a fall in income levels. 55% of students among the top 20% of
households by monthly per capita expenditure (MPCE) knew how to use a computer and
Internet while these proportions were only 9% and 10% among the bottom 20%.”

4
www.manupatra.com

MEMORIAL ON THE BEHALF OF PETITIONER 10

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

“A sudden shift to online education can also strain their spending capacity. Rough estimates
suggest pursuing online education can be very costly for the poorest households.”
There has been a new education policy tabled in the parliament. NEP emphasizes on trying to
reduce drop-outs. This cannot happen to a complete extent, if virtual mode is considered the
only mode of education. Virtual mode can only succeed, if the government ensures device
and internet connection to the entire population.
Besides affordability, the lack or almost no sense of interactive communication, suppressed
doubts leading to an utter confusion reduces the advantages of online classes. They act more
of a burden on the students keeping in mind their spree of distractions with the presence of
social networking sites at the tip of their fingers without any surveillance.

5
As Gearhart (2001) wrote in her seminal report, “the impact of technology on teaching is
significant, raising special and never before encountered concerns about various ethical and
legal issues. Justifiably, it is essential to explore these major issues in relation to the use of
computer and internet technology-based education.”
Intellectual Property Rights:-
“As used in law, intellectual property refers to inventions, creative works, discoveries, know-
how, show-how, or artistic works that have value, produced through human activities by
individuals or entities”
Several individuals put in a considerable amount of time, energy and resources in structuring
their study material. But, with the advent of digital media it has just become so much easier
to copy the data, and the idea of copying and infringement increases. The files can transfer
from one person to another through the way of electronic media and Internet in a brink of
time. With the mode the problem of Intellectual property rights being exploited has been
increased. With everything being available online, the content can be easily, copied, judged,
and can even travel and plagiarized. For example, in learning environments such as seminars
or colloquia, a fair amount of new knowledge can be generated not only by teachers but also
by students. In the case of students, “the issue of who owns the material or who can license it
can be controversial although some institutional policies apply a work-for-hire principle to
their students.”
Copyright Law:-“Copyright law is the protection of an original work fixed in a tangible
form; the work has to be embodied in a material object of some kind, such as the pages of a
book, a canvas, or a computer storage device.”
Online platforms are difficult to regulate and keep a check on. Content can be copied and
pasted from anywhere and everywhere without giving credit to the author. “All educational

5
www.manupatra.com

MEMORIAL ON THE BEHALF OF PETITIONER 11

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

materials are copyrighted the moment they are created although there may not be any
copyright notice”.
Although, the connection of online education with copyright laws is pretty new, their misuse
has already begun. Students and teachers copy pasting someone else's content for their own
purpose without credits is creating a havoc in online classes. This attitude and lack of
checkfor misuse of copyright laws is making the concept of online classes illegal and
disadvantageous as well.
Right To Education Act:-The Government came up with the Right of Children to Free
and Compulsory Education,20106. This act made it compulsory for children between the
age group of 6 to 14 to receive primary education free of cost.17. This was done to mark the
importance of education among all strata of societies. The act clearly established that
Education is a fundamental right under article 21A7. The act established that basic education
does not differentiate between the rich and poor. Basic education is a necessity rather than
being a privilege. To substantiate the theory one can refer to the case of Unni Krishnan JP V.
State of Andhra Pradesh & Others8
The Court said that, in order to treat a right as fundamental right, it is not necessary that it
should be expressly stated as one in Part III of the Constitution “the provisions of Part III and
Part IV are supplementary and complementary to each other.” The Court rejected that the
rights reflected in the provisions of Part III are superior to the moral claims and aspirations
reflected in the provisions of Part IV.
With the advent of online education, the entire system of free a compulsory education went
down the road. The provisions of incorporating and inculcating disadvantaged students at par
with the privileged ones have now been left only on paper. With the entire education system
shifting to an online mode, depending heavily on electronic gadgets good connectivity and,
basic education has again been transformed into a privilege than being a necessity. Favoring a
certain section of society, online classes do not guarantee equality and equity among students.
Presence of a legal provision that mandates free and compulsory education to every child, the
online mode not only worries students but also makes their chances of a secure future at
stake. Families who are struggling to make their both ends meet, have been brought under an
added pressure of electronic gadgets to ensure basic education to their children. What was
earlier a responsibility of the institutions to ensure primary education to children, now
becomes a duty of the guardians and families by providing electronic gadgets and internet
connectivity for the same. Thus, the provision of RTE goes against the nature of online
education.
Internet Issues:-
Despite the large base of internet users, the internet penetration rate in the country stood at
around 50 percent in 2020-21. These astonishing figures go against the decision taken by the
supreme court in:-AnuradhaBhasin and Ors. Vs. Union of India (UOI) and Ors9.It was held

6
wikipedia
7
86th amendment act,2002
8
1993 AIR 2178,1993 SCR (1)594.
9
W.P. (C) No. 1031 of 2019

MEMORIAL ON THE BEHALF OF PETITIONER 12

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

that Internet as a fundamental right under the Right to life in Article 19. States like Jammu
and Kashmir have had a serious connectivity issues ever since the abrogation of article 370.
People have been in an advantaged situation ever since.
In a situation like this where people of a particular state don't even have a continuous and
proper internet connection the prospect of conducting online classes is just unfair.A biased
and unconcerned approach towards people who do not have a stable internet connection
makes the provision of online classes a worrisome situation for the students making to
undergo tremendous amount of mental pressure and anxiety.
The fear of being left out, the constant badgering of not being able to catch up with their
peers and adding unnecessary burden on their families for better electronic devices and an
expensive data plan makes the online classes a privilege just for the well to do families. In a
country like India which is still struggling to make people borne out the poverty, the
introduction of online education just favors only a particular section pushing the others back
into the realm of poverty.

CONCLUSION

The Supreme Court stayed the Delhi High Court verdict which directed private unaided as
well as government schools like 'KendriyaVidyalayas' to provide gadgets and internet
packages to students from economically weaker section (EWS) or disadvantaged group so
that they have access to online classes.
A bench headed by Chief Justice S A Bobde agreed to hear the plea filed by the Delhi
government challenging the high court judgement of September 18 last year. “Issue notice. In
the meantime, there shall be stay of operation of the impugned order of the high court,” the
bench, also comprising Justices A S Bopanna and V Ramasubramanian, said in its order.
The court had said that, "Segregation in education is a denial of equal protection of the laws
under Article 14 of the Constitution and in particular the Right to Education (RTE) Act,
2009."
The high court had said that section 12(1)(c) of RTE Act 10 requires private unaided schools to
provide free and compulsory elementary education to 25 per cent EWS/DG students and that
means "education sans financial barrier".
"Consequently, intra-class discrimination, especially inter-se 75 per cent fee paying students
viz-a-viz 25 per cent 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," it had said.

10
2009

MEMORIAL ON THE BEHALF OF PETITIONER 13

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

ISSUE-2

WHETHER A STATE CAN BE HELD TORTUOUSLY LIABLE FOR ITS

FAILURE TO ACT ACCORDING TO THE CRFCE ACT READ WITH
ARTICLE-XXI-A OF CONSTITUTION?

Yes, the state can be held tortuously liable for its failure to act according to the CRFCE Act
read with Article 21-A11 of the constitution which states “ 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”.
RTE is a basic human right recognized by various international instrument 12 as well as
constitution of HODU.
Section III of CRFCE Act 2019 casts certain obligation over the state 13:-
Reads as: a. The State shall strive to promote the welfare of the people by securing and
ensuring the right to access public educational institutions on a non-discriminatory basis.
b. The State shall provide Information and Communication Technologies (ICT) facilities and
necessary accessories both to the students and teachers to facilitate online teaching and
learning.
c. The State shall ensure through technological advancement that education becomes
accessible to all and that no person shall be deprived of education because of economic
conditions.
d. The State shall strive to take steps to train teachers to adopt new technologies and
innovations in teaching-learning by using ICT.
e. The State shall provide economic assistance both to the teachers and students.

Unfulfilled duties by state as to CRFCE

Act

It has been observed that the State has not fulfilled the objectives of Article XXI-A read with
Section III of CRFCE Act to accelerate the pace of expansion of the right to education, and
observed the following 14:
a) The State has failed to prepare a plan to ensure the establishment of ICT centers in
educational institutions to enable the largest possible number of children to have access to e-
readers for online learning.

11
Added under 86th amendment act,2002
12
Example – UDHR,1948

13
Part-B role of the state, mentioned in moot preposition, page no.11.
14
Moot preposition-24

MEMORIAL ON THE BEHALF OF PETITIONER 14

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

b) The State has failed to provide adequate training for teachers to equip them with the
knowledge of using various online teaching methodologies including the use of platforms
such as WHIZZ, LINEAPP, CLASSMEET, etc.
c) The State failed to provide any adequate economic support to the disadvantaged students to
have access to education.
d) The State has not equipped both the students and teachers with adequate e- infrastructure
to facilitate online learning.
e) The State has not adequately reduced the cost of taking short online courses or provide
financial support to students pursuing education.

Article 21A and unfulfilled

obligation by state of HODU

In order to ensure compliance of article 21A of the constitution, it is imperative that schools
must have qualified teachers and basic structure infrastructure, Environmental and
Consumer Protect Foundation V. Delhi Administration15,
Right of a child should not be restricted only to free and compulsory education, but should be
extended to have quality education without any discrimination on the ground of their
economic, social, and cultural background, State of Tamil Nadu V. K. Shyam Sunder16,
In the majority of the cases the Supreme Court had shown a greater degree of judicial
consciousness towards protection of individual rights and liberties by containing
administrative lawlessness and providing compensative justice to the victims. So it can
be successfully contended that state can be held liable for not comply with provisions of
said act read with art. 21-a.

Liability of state under tort

As the state has failed to comply with the provisions of constitution and CRFCE Act to
provide free and compulsory education to all, it would be contended that state must be held
tortuously liable for its failure to comply with the obligation.
The term ‘state’ is defined under article 12 of the constitution.
In Mohini Jain V. State of Karnataka (199217)the court struck down the payment of
capitation fee as a condition for entry into any educational institution, prospectively, while
denying admission to the Petitioner. In Unni Krishnan v State of Andhra Pradesh (199318),

15
2012 (4) SCALE 243.
16
AIR 2011 SC 3470: (2011) 8 SCC 737: JT 2011 (9) SC 166: (2011) 8 SCALE 474.
17
1992 AIR 1858; 1992 SCC (3) 666; 1992 SCR (3) 658
18
1993 AIR 2178,1993 SCR (1)594.

MEMORIAL ON THE BEHALF OF PETITIONER 15

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

the Supreme Court confirmed this decision that the right to education indeed flowed directly
from the right to life, which poses an obligation on the State to provide basic education to all
citizens during their childhood.
The liability under law of tort arises to get legal remedy in form of damages when the civil or
constitutional rights are violated. In context of HODU, a state could be held liable for
violating its legal duty and infringing the right of its subject. The doctrine ‘Res Non-
PotestPeccare’(which means the king can do no wrong) has no implication in state of HODU.
Article 30019 of the constitution envisage the provision in respect of state’s liability as it gives
the right to public to sue the state. Although the liability of the state under the principle of
sovereign or non-sovereign function.
ARTICLE 300 consists of 3 parts:-
(1) The first part provides for the form and the cause-title in a suit and says that a State
(omitting any reference to the Government of HODU) may sue or be sued by the name of the
State, and
(2) that a State may sue or be sued in relation to its affairs in like cases as the corresponding
Provinces or the corresponding Indian State might have sued or been sued if this Constitution
had not been enacted; and
(3) that the second part is subject to any provisions which may be made by an Act of the
Legislature of the State concerned, in due exercise of its legislative functions, in pursuance of
powers conferred by the Constitution.
WHAT DOES GOVERNMENT OF HODU ACT, 1915 TALKS ABOUT?
Emerged on the enactment of s.32 of the Government of HODU Act, 1915 Sub-ss. (1) and
(2), which only are relevant for our present purposes, are in these words:
"(1) The Secretary of State in Council may sue and be sued by the name of the Secretary of
State in Council, as a body corporate.
(2) Every person shall have the same remedies against the Secretary of State in Council as he
might have had against the East hodu Company if the Government of HODU Act, 1858, and
this Act had not been passed."

Smt.NilabatiBehera alias LALITA BEHERA V. STATE OF ORISSA AND

OTHERS AIR 1993

In this case no.20of earlier judgements were considered. It was held by the Apex court that the
claim of sovereign immunity would not be applicable, in case of violation of fundamental
rights. For enforcement of the fundamental right, the SC and HC under article 32 and 226 of

19
Indiankannon.com
20
AIR 1993 SC 1960.

MEMORIAL ON THE BEHALF OF PETITIONER 16

1ST CHRIST ACADEMY INSTITUTE OF LAW (CAIL) NATIONAL MOOT COURT
COMPETITION2021. (TC-04)

the constitution of HODU can consider and allow the claim of the victim’s family, for
payment of the compensation, against the violation of the fundamental right. It appears that
without going through the subsequent judgements the objection was raised by the learned
government advocate.
-"It follows that a claim in public law for compensation for contravention of human rights
and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of such rights, and such a claim based
on strict liability made by resorting to a constitutional remedy provided for the enforcement
of a fundamental right is distinct from, and in addition to the remedy in private law for
damages for the tort' resulting from the contravention of the fundamental right. The defense
of sovereign immunity being inapplicable, and alien to the concept of guarantee of
fundamental rights, there can be no question of such defense being available in the
constitutional remedy. It is this principle which justifies award of monetary compensation for
contravention of fundamental rights guaranteed by the Constitution, when that is the only
practicable mode of redress available for the contravention made by the State or its servants
in the purported exercise of their powers, and enforcement of the fundamental right is
claimed by resort to the remedy in public law under the Constitution by recourse of Arts.32 &
226 of Constitution. This is what was indicated in RudulSah (AIR 1983 SC 1086) and is the
basis of the subsequent decisions in which compensation was awarded under Art. 32 and 226
of the Constitution, for contravention of fundamental rights.

CONCULISION

Now that we have, by our Constitution, established a Republican form of Government, and
one of the objectives is to establish a Socialistic State with its varied industrial and other
activities, employing a large army of servants, there is no justification, in principle, or in
public interest, that the State should not be held liable vicariously for the tortious act of its
servant. The Court has deliberately departed from the Common Law rule that a civil servant
cannot maintain a suit against the Crown. {State of Rajasthan v. Vidyavati }21.
ISSUE-2(a)

WHETHER THE STATE IS LIABLE TO PROVIDE FINANCIAL ASSISTANCE

AND FREE DIGITAL ACCESSORIES FOR ENSURING THE UNIVERSALITY
OF EDUCATION?

Article 7 and 8 of RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION

ACT, 2009 mentioned in CHAPTER 3 states:-
Article-7. Sharing of financial and other responsibilities.—(1) The Central Government
and the State Governments shall have concurrent responsibility for providing funds for
carrying out the provisions of this Act.

21
1962 AIR 933

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(2) The Central Government shall prepare the estimates of capital and recurring expenditure
for the implementation of the provisions of the Act.
(3) The Central Government shall provide to the State Governments, as grants-in-aid of
revenues, such percentage of expenditure referred to in sub-section (2) as it may determine,
from time to time, in consultation with the State Governments.
(4) The Central Government may make a request to the President to make a reference to the
Finance Commission under sub-clause (d) of clause (3) of article 280 to examine the need for
additional resources to be provided to any State Government so that the said State
Government may provide its share of funds for carrying out the provisions of the Act.
(5) Notwithstanding anything contained in sub-section (4), the State Government shall, taking
into consideration the sums provided by the Central Government to a State Government
under sub-section (3), and its other resources, be responsible to provide funds for
implementation of the provisions of the Act.
(6) The Central Government shall—
(a) Develop a framework of national curriculum with the help of academic authority specified
under section 29;
(b) Develop and enforce standards for training of teachers;
(c) Provide technical support and resources to the State Government for promoting
innovations, researches, planning and capacity building.
8. Duties of appropriate Government- The appropriate Government shall—
(a) Provide free and compulsory elementary education to every child:
Explanation- The term “compulsory education” means obligation of the appropriate
Government to—
(i) Provide free elementary education to every child of the age of six to fourteen years; and
(ii) Ensure compulsory admission, attendance and completion of elementary education by
every child of the age of six to fourteen years;
(b) Ensure availability of a neighborhood school as specified in section 6;
(c) Ensure that the child belonging to weaker section and the child belonging to
disadvantaged group are not discriminated against and prevented from pursuing and
completing elementary education on any grounds;
(d) Provide infrastructure including school building, teaching staff and learning equipment;
(e) Provide special training facility specified in section 4;
(f) Ensure and monitor admission, attendance and completion of elementary education by
every child;
(g) Ensure good quality elementary education conforming to the standards and norms
specified in the Schedule;

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(h) Ensure timely prescribing of curriculum and courses of study for elementary education;
and
(i) Provide training facility for teachers.

MidDay Meal Scheme 1995

“Provision of mid-day meal is a necessary concomitant of the fundamental right under

Article 21A of the Constitution of India.”22 Article 21A of the Constitution guarantees the
fundamental right to free education to all children between the ageof six to fourteen years.
The Karnataka High Court — by holding mid-day meals to be an inextricable component of
the right to education — has given a deeper meaning to Article 21A, as the existence of
fundamental rights on paper is futile if the state fails to create circumstances for the
realization of such rights. It was observed by the bench that, “the significance and
importance of providing mid-day meals to the students who attend schools cannot be under-
estimated, rather, the same has to be under-scored, as health and nutrition of students is very
much a necessary concomitant for education”.
According to a UNICEF report over 39 billion in-school meals were missed globally due to
the pandemic. As the MDMS feeds over 120 million children, its non-implementation is a
violation of right to life under Article 21 of the Constitution, as the Supreme Court,
in Vincent v. UOI23, emphasized that a healthy body is the very foundation of right to life.
Furthermore, Article 24 of the UNHR’s24 Convention on the Rights of the Child mandates
that states prevent malnutrition and help children attain highest standards of health. India,
being a party to this Convention, ought to urgently take measures for a swift implementation
of the MDMS to prevent further violation of constitutional and human rights.

Therefore it is submitted to the honorable court that state is responsible to provide

financial assistance and all other services required for effective enforcement of this right
of the Constitution.

Issue-3

WHETHER THE POLICIES OF THE STATE OF HODU ARE IN VIOLATION

OF INTERNATIONAL TREATIES AND AGREEMENTS?

It is contended that policies of state of HODU are violative of international treaties and
agreements. In order to bring a successful contention, it is pertinent to refer ARTICLE

22
https://ohrh.law.ox.ac.uk/mid-day-meals-and-the-pandemic-a-human-rights-concern/
23
2007 (93) DRJ 223.
24
2006

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51 OF THE CONSTITUTION which talks about PROMOTION OF

INTERNATIIONAL PEACE AND SECURITY 25:-
The state shall endeavour to-
a- Promote international peace and security;
b- Maintain just and honourable relations between the nations;
c- Foster respect for international law and treaty obligations in the dealings of organized
people with one another and;
d- Encourage settlement of international disputes by arbitration.

AT STATE LEVEL

Education had a fundamental value for a dignified life in HODU jurisprudence.

Ancient shloka translated as:
Education imparts intellectual culture; intellectual culture secures capacity and stability.
Capacity and stability enables us to secure wealth. Wealth so secured enables confirmation to
Dharma which in turns secures happiness 26.
Education → Intellectual Culture → [secures] Capacity and stability →[secures]wealth
→[secures] confirmation to dharma →[secures] happiness.
In ancient Hodu context, knowledge acquisition and distribution were seen as part of
religious duty and its significance can be understood from another shloka translated as;
Every individual should discharge” five pious obligations” 27 of:-
1. Devaruna [towards god]
2. Pitruruna [towards parents and ancestors]
3. Rishiruna [towards teachers]
4. Manavaruna [towards humanity]
5. Bhutaruna [towards the nature].
Education commission report 194828 suggested that:- “The state should aim at introducing
universal compulsory education for all”.
The Central Advisory Board of Education [CABE] established by the government of HODU
in January 1950 recommended there shall be:-
a. Provisions for universal, affordable and compulsory basic education for all school
aged children.

25
Constitution of Hodu
26
Moot preposition -7
27
Moot preposition-8
28
Moot preposition-10

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b. Adult education provision to eradicate the masses massive illiteracy and;

c. From a national perspective, restructuring and advancement of the educational
system.
All HODU Council of Education [AHCE] 195729 was established which stressed the role of
state in ensuring equitable “Education for All”.
Towards the end of 1968 NEP[National Education Policy] 30was adopted by the
government aiming at retention of children in school rather than enrollment.
In August 2009 Children’s right to free and compulsory education Act[CRFCE]
Act31was notified and Article 21-A of constitution ensures fair chance and access to
education for every child.

AT INTERNATIONAL LEVEL

According to general committee no. XIII of 1999 on right to education, the committee on
economic, social and cultural rights [CESCR] observed 3 types of obligation on state:-
a. Right to respect
b. Right to protect
c. Right to fulfill
Also, CESCR said, education has tobe flexible, adaptable to the needs of changing societies
and responding to the needs of students within their diverse social and cultural settings.
Also the 1989 Convention on the Right of the child[CRC] 32 refers to education under Article
28 and 29 which has been ratified by HODU. In reports global education summits, initiated
by various international committees and commissions emphasized on “Innovation in
Education”.
Education is a key social and cultural right and plays an important role in reducing poverty
and child labor. Furthermore, education promotes democracy, peace, tolerance, development
and economic growth. There are a number of articles in the UN Convention on the Rights of
the Child33 that focus on a child’s right to education.

Articles 28 and 29 of the Convention on the Rights of the Child 34

Articles 28 and 29 focus on a child’s right to an education and on the quality and content of
education. Article 28 says that “State Parties recognise the right of children to education”
and “should take all appropriate measures to ensure that school discipline is administered in a

29
Moot preposition-12
30
Moot preposition-14
31
Moot preposition-23,24
32
Convention on the rights of child 1989.
33
1989
34
Convention on the rights of child 1989.

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manner consistent with the child’s human dignity.” Article 29 focuses on the aims of
education and says that governments agree that “the education of the child shall be directed
to:

 The development of the child’s personality, talents and mental and physical abilities to
their fullest potential.
 The development of respect for human rights and fundamental freedoms and the principles
enshrined in the Charter of the United Nations.

 The development of respect for the child’s parents, his or her own cultural identity,
language and values, for the national values of the country in which the child is living, the
country from which he or she may originate and for civilisations different from his or her
own.

 The preparation of the child for responsible life in a free society in the spirit of
understanding, peace, tolerance, equality of sexes and friendship among all peoples,
ethnic, national and religious groups and persons of indigenous origin.
 The development of respect for the natural environment.

The 1990 World Declaration on Education for All described education as consisting of
essential learning tools such as literacy, numeracy and problem solving combined with
knowledge, skills, values and attitudes required by human beings to survive, develop
potential, to improve the quality of their lives, to make informed decisions and to continue
learning.

It’s important to remember that the Convention must be seen as a whole and so articles 28
and 29 should not be looked at or considered in isolation. Particular regard should be paid to
the General Principles and other closely related articles for example: article 16 : protection of
privacy, article 24 health (including health education), article 31 rest, leisure, play, recreation
and culture.35

UNESCO recognized education as a human right. The roadmap was laid down in the
Education Framework for Action [EFFA]. The program was dedicated to the use of internet
in education. The aim was to the role of the internet as a tool for imparting education. The
Human Right Council of United Nations has also found that the right of access to internet is a
fundamental freedom and a tool to ensure RTE. HODU has been a member of both Global
Education Industry Summits GEIS and EFFA programs and has also agreed to the
recommendations.

Hodu may be a signatory to many international agreements and treaties but some of the
commitments made to the world community do not find the desired application within the
country because of gaps and lack of clear-cut direction within Hodu jurisprudence.

A case in point is the right to compensation for victims of human rights violations, including
those perpetrated by the state like unlawful detention, torture, and custodial deaths. Currently,
cases of recompense are virtually left to the discretion of individual judges.

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However, there are several international agreements and reports that underline the need for
governments to provide for suitable compensation.
In a 1993 report, Professor Theo van Boven, then United Nations Special Rapporteur on the
right to restitution, compensation, and rehabilitation for the victims of gross violations of
human rights and fundamental freedoms had noted, “The issue of State responsibility comes
into play when a State is in breach of the obligation to respect internationally recognized
human rights. Such obligation has its legal basis in international agreements, in particular
international human rights treaties, or in customary international law.”
International Agreements:-Hoduis party to international agreements pertaining to state
responsibility. Additionally, Hodu is part of the international community bound by customary
international law, so long as such law is not inconsistent with Hodu law. Specifically, Article
51(c) of the Hodun Constitution dictates, “The State shall endeavor to foster respect for
international law and treaty obligations in the dealings of organized people with another.”
Despite this, Hodu has failed to uphold international standards within customary international
law regarding compensation and has taken reservations to crucial articles of relevant treaties,
such as the International Covenant on Civil and Political Rights (ICCPR)36.
Although the Supreme Court interpreted a constitutional right to compensation in the Radul
Shah case37 for State violations of fundamental rights, Hodu reservation to Article 9 of the
ICCPR “has virtually blocked a statutory right to compensation.” Article 9 (5) of the ICCPR
states, “Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.” Yet, Hodu’sreservation to Article 9 conditions, “under
the Hodu Legal System, there is no enforceable right to compensation for persons claiming to
be victims of unlawful arrest or detention against the State.” This resilient reservation has left
a gaping hole in the protection of fundamental rights in Hodu.
UDHR [universal declaration of human rights] 38
On December 10th, we celebrate Human Rights Day in order “to bring to the attention of people of
the world the Universal Declaration of Human Rights[UDHR] as the common standard of
achievement for all peoples and all nations”[UN General Assembly, 1950].

Adopted on 10 December 1948, the UDHR is the first international document, which
formally sets out fundamental human rights to be universally protected.

Article 26 of the UDHR recognizes education as a right:

1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be compulsory.
Technical and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.

2. Education shall be directed to the full development of the human personality and to
the strengthening of respect for human rights and fundamental freedoms. It shall

36
Signed in 1966 and came into force in 1976.
37
Rudul shah vs. state of Bihar,(1983) 4 SCC141
38
1948

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promote understanding, tolerance and friendship among all nations, racial or

religious groups, and shall further the activities of the United Nations for the
maintenance of peace.

3. Parents have a prior right to choose the kind of education that shall be given to their
children.

After the adoption of the UDHR, the right to education has been reaffirmed and further
developed in a number of international and regional treaties. Today, all States (except South
Sudan) have ratified at least one human rights treaty, accepting the legal obligation to respect,
protect and fulfil the right to education for all, without discrimination.

However, there are still huge challenges in fully realizing the right to education. Everyday,
everywhere in the world, this right is violated. As we celebrate Human Rights Day39, it is
important to remember that the right to education is more than words written in legal
instruments.

The law is fundamental in guaranteeing the right to education, but the law alone does
not mean everyone is enjoying their universal human right to education.

Rene Raya, from the Asia South Pacific Association for Basic and Adult Education
(ASPBAE)40, highlighted that Asia-Pacific hosts the majority of illiterate adults (64% of
global total) and 31% of total of out-of-school children. In the region, over 100 million youth
(15-24 years) have not completed primary education and gender disparity remains large with
2/3 of women illiterate and more girls out-of-school than boys. At the same time, Asia-
Pacific spends the least on education, which explains why the right to education is not
realized in practice, despite most countries having constitutional and legal provisions
guaranteeing free and compulsory education.

Due to the lack of public financing, Asia-Pacific has seen a stronger push towards
privatization with an increase in private school enrolment, the rise of low fee private schools,
the expansion of private tutoring, and the emergence of corporate chain schools, which all
negatively impact on the enjoyment of the right to education. In Cambodia for instance,
private tutoring has become so widespread that poor students, whose parents cannot afford it,
fall behind. Privatization doesn’t just affect students; teachers working in private school are
paid extremely low salaries, often without benefits or social security. In some parts of the
world, particularly in emergency contexts, students risk their lives to access education.

Some highlighted discrimination issues: the lack of access to early childhood care and
education in rural area, particularly for poor families; the lack of access to school for disabled
children, even more so if they are orphans; the challenge for nomadic people to get to schools
as the availability of mobile schools is limited; the exclusion from education of persons in
detention; the gender inequalities from primary to higher education; and the difficulty in
receiving education in minority languages. Some quality issues, for instance, in some remote
areas students are taught in tents, and materials, such as books, are unavailable. Students also
denounced the prohibitively high university fees.

39
Celebrated on 10 December, because on 10 December 1948 UDHR was adopted.
40
Established in Sydney, Australia on 30 January 1964.

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The right to education is more than just words written in legal instruments. It is a daily
challenge to effectively enjoy it.Today, let’s call on States to comply with their
obligation to guarantee the right to education to everyone, including through the
adoption of special measures towards marginalized groups.

This was reaffirmed in the National Legal Services Authority v. Union of India, 201441
– the case that recognised transgender as a third category of gender. The court said: ‘If
parliament has made any legislation which is in conflict with the international law, then
Indian courts are bound to give effect to the Indian law, rather than international law.
However, in the absence of a contrary legislation, municipal courts in India would respect the
rules of international law.’ It then went on to say that any international convention not
inconsistent with fundamental rights must be read into Articles 14, 15, 19 and 21 to enlarge
the meaning and content there.

41
2014 (5) SCC 438

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PRAYER

THEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED

AND
AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HON‟BLE COURT-

1. TO HELD THAT 2020 ONLINE LEARNING ORDINANCE IS

UNCONSTITUTIONAL.
2. TO HELD THAT STATE CAN BE TORTUOUSLYLIABLE FOR ITS
FAILURE TO ACT ACCORDING TO THE CRFCE ACT READ WITH
ARTICLE-21A OF THE CONSTITUTION.
2(A) – TO HELD THAT STATE IS LIABLE TO PROVIDE FINANCIAL
ASSISSTANCE AND FREE DIGITAL ACCESSORIES FOR ENSURING THE
UNIVERSALITY OF EDUCATION.
3. TO HELD THAT POLICIES OF STATE OF HODU ARE IN VIOLATION OF
INTERNATIONAL TREATIES AND AGREEMENTS.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON‟BLE
COURT MAY
DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

COUNSILS FOR THE PETITIONER

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ss

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