Friday, December 16, 2005

Digantar's Legal Stand

A new fact sheet explaing Digntar's legal stand and other background + a copy of PIL are uploaded.
Fact Sheet

Public Interesest Litigation

Some Excerpts from the fact sheet explaining the legal stand & other questions/clarifications:

The Fundamental Right to free education
  • Fundamental Right to “free and compulsory education” is granted to every child in the age group of 6-14 years under Article 21A, as a consequence of ‘The Constitution (Eighty-Sixth Amendment) Act, 2002’. Closure or dislocation of the school will lead to disruption of education of 325 children, and an end to education of more than 200, majority of whom shall be girls. In addition it would mean a lost opportunity to many future students.
“Neither the state government nor any of its agencies/ authorities can be allowed to supersede a claim under the Fundamental Right to education in favour of a claim that is not covered by any of the Fundamental Rights. A cause like allotment of land for a private university, as per JDA’s decision, is not covered by any of the Fundamental Rights since it is meant to provide commercialized education to students over 18 years of age and who will be”. (From Prof. Sadgopal’s letter)

Therefore, closure of a school in this case would be violation of the constitution of India.

Discrimination against Digantar
  • Even if JDA claims that all earlier applications were on plain paper and no application fee was paid for them the application of April 8, 2003 cannot be ignored, it was ‘complete’ in every respect.

  • This application mentions willingness to pay for the land at concessional rates that the government itself decides for the allotment of land to schools.

  • The school is free and all books and stationary is provided for free.

  • On what grounds then dose JDA allots land to a later applicant? Are such decisions based on the sweet will of the official of the day? Can they be arbitrary? Should not Digantar expect a fair treatment in this case?

  • I am informed there are Supreme Court judgments that imply ‘legitimate expectation to be heard’ for the applicant that applies first. And their application has to be judged on merit.

  • In addition Digantar will use the land for public benefit and not for private profit, that constitutes additional merit.

  • Is there a redressal in the law for this kind of deliberate discrimination?
The moral aspect of calling Digantar an encroacher
  • Partly dealt in the point above.

  • Encroachment in ordinary language means “entry to another's property without right or permission”

  • Digantar started the school with the active recommendation of the community, and sent an application to the legal authority that was responsible for the land one month or so before the building was started. No response came.

  • That does not give Digantar entitlement to the land, but it absolves Digantar of any land-grabbing intentions. Digantar has been informing through applications to legitimate authority about running of the school. They never asked to vacate.

  • Also there is a board next to the school that states that the land does not belong to Digantar, it belongs to the government. The board was put up by Digantar itself.

  • The legitimate authority dealing with land allotment (JDA) did not do what was expected of it (consider the application, accept or reject it) and by sear inaction made Digantar into an encroacher. This is injustice by inaction.
Legal aspect of possession of the land:
  • Even if JDA does not accept our arguments and intentions as expressed in two points above then they have to accept that school is running there for more than 12 years, there is plenty of documentary evidence.

  • A possession that old can be removed only by due process of law: that is the JDA should go to the civil court and get a decree from there. They cannot directly demolish the school.

  • I am informed that there is a JDA regulation to regularise all land that is occupied before 1994, there are more than a lakh of such cases in Jaipur. Then why not regularise Digantar. Discrimination again.
What do we want?
  • Our primary concern is running of the school. The school needs to be taken to the level of Senior Higher Secondary, to serve the cause of girls’ education properly.

  • We want to start an institution of education (for research in pedagogy and teacher education) that takes the pedagogical work being done further academically. Such institution can start with our best and biggest school only. But that would require more land (total about 7 acres) than what we have applied for, and that possibility is remote now.

  • The school would be free, and all ventures of Digantar are non-profit activities.

  • If the government gives this land to us on lease for a long period, for this specific purpose, it would be our first priority. We are not interested in ownership or making profit out of it.

  • Alternatively the government can allot the land with condition that we cannot sell it, cannot use for any commercial activity, and that the school shall be free.

  • If even that is not possible (but why?), then we are willing to buy the land at a price that is charged from free schools. We have already said that in our applications and written statements to JDA.
Answers to some other questions that were raised:

What are the options for students? Other Schools etc?

If we do not get the land we have to close down the school. Buying land in that area at the regular price is beyond Digantar at this moment, unless help is available.

Primary schools from two for the Dhanis are about one and a half km, and upper primary is more than two kms. If all 325 children of bandhyali land up in those schools they will not be able to accommodate them.

In any case most of the upper primary girls (about 160) will simply stop going to school. That was the precise purpose of starting upper primary section in the school. AND THAT IS THE REASON WE ARE VERY VERY RELUCTANT TO MOVE THE SCHOOL. THIS PROBLEM MAY BE SOLVED IN ANOTHER 7-10 YEARS BUT AT PRESENT GIRLS ARE UNLIKELY TO GO TO ANY OTHER UPPER PRIMARY SCHOOL.

Why did Digantar start school at this place?

The problem is that 13 years back it was not valuable property. The village community decided that this is a central place for all hamlets and so the school was started there. We informed the government before starting and requested reserving it for school, not for Digantar. The school kept on running for 12 years, mean while we tried to get them to say something on the land several times and they kept mum.

All this is from email/documents sent by Rohit - Digantar Co-ordinator.

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