JUDGMENT
1. On December 23, 1997, Anshu Sharma, a student of M.C.D. Primary School, Mahavir Enclave, Dabri, New Delhi, aged about 7 years, was crushed to death by a vehicle while crossing the road in front of the school. He had gone outside the school during school hours to fetch drinking water for himself as potable hygienic water was not available in the school. With these allegations the instant public interest writ petition has been filed by All India Lawyers Union, a voluntary organisation, for various directions.
2. To meet the allegations two counter-affidavits have been filed on behalf of the Municipal Corporation of Delhi. These affidavits have been affirmed by Shri Om Prakash Assistant Education Officer, Nazafgarh Zone, and Shri T.C. Arora, Deputy Education Officer. While not denying the accident and the fact that the child had gone outside the school during school hours, it is asserted that the drinking water was freely available in the affidavits filed on February 2, 1998 and September 1, 1998 by Shri Om Prakash and Shri T.C. Arora, respectively, are as follows :-
“It is submitted that there is no shortage of water in the school. Therefore, there was absolutely no question for the school children to go outside the School for drinking water. What is most important is the fact that there is neither any water tap nor any other source of drinking water near the school or on the highway as alleged in the petition.”
(Affidavit of Shri Om Prakash)
“Contents of para 6 is (are) not denied to the extent that (a) school boy of seven years old was crushed to death by a four wheeler tempo on the fateful day i.e. 23.12.1997. Rest of the averments in this para are wrong and denied. It is submitted that there is no shortage of water in the school and therefore, there was absolutely no question for the school children to go outside the school for drinking water….”
(Affidavit of Shri T.C. Arora)
3. The above averments in the counter-affidavits clearly contradict the note of the Commissioner dated January 28, 1998. A perusal of the note of the Commissioner reveals that the same is based on the preliminary enquiry report made by the Additional Director (Vigilance), dated January 22, 1998. It appears from the note that the tragedy could have been averted if adequate drinking water facility was available in the school. The note in this regard reads as follows :-
“6. Shri Chauhan has also admitted that he had started the process of providing adequate water supply to the school since June, 97 but till 23.12.97 no tangible progress in the same was made. It is understood that soon after the incident 2 hand pump had been made operative within a couple of days. Had this kind of promptness been shown earlier, the tragedy might have been averted. Accordingly, I do not find any reason as to why only written warnig be given to Shri V.S. Chauhan, J.E. (Works). RDA for major penalty be initiate against him as well as Head Master Shri Attar Singh Jain who showed utter lack of responsibility in discharge of his duties.”
4. Therefore, it is apparent that though the process for providing adequate water supply to the school was started in June 1997, no tangible progress was made in this direction till December 23, 1997. It was only after the incident that two hand pumps had been made operative. Thus, it is clear that an attempt has been made by the affiants to conceal the real reason why the child Anshu Sharma went outside the school on December 23,1997 during school hours. We are constrained to observe that the affidavits filed by Shri Om Prakash, Assistant Education Officer and Shri T.C. Arora, Deputy Education Officer, have taken liberties the with truth.
5. The importance of provision of drinking water in a school cannot be over emphasised. Children cannot be expected to remain in school for long hours without water. They can not be made to go out side the school, on busy and hazardous roads, in search of water. Water sustains life. To deny water is to deny adequate sustenance. The State, under Article 39(f) of the Constitution, is required to secure opportunities and facilities to children to develop in a healthy manner. When even water cannot be provided to children in a school, the question of their development in a healthy manner would be a far cry. Provision for wholesome potable water in schools is part of right to life enshrined under Article 21 of the Constitution. All schools must provide clean drinking water to the children.
6. It is important to note that the respondent have not disputed that the child went outside the school during the school hours. It follows that the child was not prevented from leaving the school to quench his thrust. The school authorities were under a duty of care which has been clearly breached by them. When the parents leave the children in school they are in the custody of the school authorities. They are required to take such care of their pupils as would be taken by a careful and prudent parent. The fact that the child could move out of the school during, school hours shows that either the gate was unmanned or the security at the gate was lax. The school authorities owe a duty to provide adequate security to the children to prevent chances of injury to them. That duty has not been performed by the authorities. But for their negligence in discharge of the duty, the child would have been alive. In the circumstance, therefore, respondent No. 5, which runs the school is liable o pay compensation to the parents of the deceased child. We are conscious of the fact that money is not an adequate compensation for life. It cannot wipe the tears of the parents of the deceased child but there is also no other mode to compensate them.
7. We are also conscious of the fact that we are awarding compensation to the parents of Anshu Sharma in a writ petition. This is permissible in law. In D.K. Basu Vs. State of West Bengal, , Dr. Justice A.S. Anand (as his Lordship then was) held as under :-
“43. Till about two decades ago the liability of the Government for tortuous act of its public servants was generally limited and the person affected could enforce his right in tort by filling a civil suit and there again the defense of sovereign immunity was allowed to have its play. For the violation of the fundamental right to life of the basic human rights, however, this Court has taken the view that the defense of sovereign immunity is not available to the State for the tortuous acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera Vs. State the decision of this Court in Kasturilal Ralia Ram Jain Vs. State of U.P. wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus : (SCC p. 761, para 14).
“In this context, it is sufficient to say that the decision of this Court in Kasturilal upholding the State’s plea of sovereign immunity for tortuous acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defense to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, where the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decision of this Court in Rudul Shah and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal related to the value of goods seized and not returned to the owner due to the fault of government servants, the claim being of damages for the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights Kasturilal is, therefore, inapplicable this context and distinguishable.”
The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of a claim based on strict liability and is an addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.
The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim – civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.
In Nilabati Behera case, it was held : (SCC pp. 767-68, para 32)
“Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India,it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve `new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title `Freedom under the Law’ Lord Denning in his own style warned:
“No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy ? Our procedure for securing our personal freedom is efficient out procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence… This is not the task of Parliament. The court must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.”
8. Thus, there is clear authority for grant of compensation to the affected party on account of breach of Article 21 of the Constitution.
9. The Headmaster of the School, who is under suspension pending enquiry into the incident, at the last hearing told us about the communication sent to the department in respect of lack of provision of water which remained unattended leading to the unfortunate incident. Even if the Headmaster had not asked for this facility it was the duty of the M.C.D. to ensure that this very essential facility was available in the school. We are already hearing other connected writ petitions wherein basic facilities lacking in Municipal Schools have been highlighted. We hope and trust that the enquiry underway will also find out who was reponsible for sitting on the request, if any, for providing water to the school which is the root cause of this tragedy. Irrespective of any such request the M.C.D. was in any event bound to provide drinking water in the school. This public duty was owed by the M.C.D. and its concerned officials to all the students of the school. The duty of care is flagrantly breached n two counts. (a) not providing drinking water, and (b) not providing adequate security for children. The negligence is further compounded by the cavaller disregard for truth as demonstrated by the affidavits filed by the M.C.D. We hope and trust that the officials of the culpable department who are responsible for the above said poses will be made accountable.
10. Having regard to the facts and circumstances of the case as revealed from the report of the Commissioner, direct that a sum of Rs. 2 lakhs shall be paid by the respondent No. 5 to the parents of the deceased child. This direction will not prejudice the right of the parents of the deceased to take such action against persons responsible for the incident, as may be permissible in law. This order will not preclude respondent No. 5 in holding an enquiry against the erring officials. The payment shall be made by the respondent No.5 to the parents of the deceased child within four weeks. It is, however, clarified that the said amount awarded in these proceedings in consonance with the law laid down by the Supreme Court in Nilabati Behera (Smt.) alias Lalita Behera (through the Supreme Court Legal Aid Committee) Vs. State of Orissa and others, , would be taken into account while awarding compensation in any other proceedings initiated/instituted on behalf of the family of the deceased against respondent No. 5 and its officials.
11. List the writ petition for further directions on November 30, 1998.
