Can't direct Governor to give assent to bill to ban screening in nursery admissions: High Court

New Delhi: The Delhi High Court has refused to direct the Lieutenant Governor to give assent or return the Delhi School Education (Amendment) Bill, 2015 which proposes to ban the screening procedure for children in nursery admissions, saying courts cannot interfere in the legislative procedure.

The high court said it is not proper for it to issue any kind of writ to the governor whether to accept or reject a Bill within any timeframe.

It is always for the governor to give his assent or withhold his assent to any Bill however desirable the legislation may be, the court said, adding while exercising this discretion, the governor cannot feel bound on the act and advice of his ministers and courts also cannot control or interfere in this process.

The HC, however, noted that if the bill does not get an assent, Article 200 of the Constitution indicates that the governor must as soon as possible after the presentation of the Bill to him return the Bill together with a message to the House/Houses to reconsider the Bill or any specified provision.

"It is not proper for a high court while exercising its jurisdiction under Article 226 of the Constitution to direct a governor who is a constitutional authority to set a time frame in matters which come purely within the domain of the governor.

"In the considered opinion of this court, even though the Bill has been passed by the House, it is always open to the governor to agree or to send the Bill back to the House and this court ought not pass a writ of mandamus directing the governor to act," a bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said in its judgment passed on Monday.

The high court's verdict came while rejecting a public interest litigation (PIL) which submitted that a "child-friendly" bill - Delhi School Education (Amendment) Bill, 2015 - is hanging between central and Delhi governments for the past seven years without any justification and against public interest and opposed to public policy.

It said the mandamus as prayed for cannot be granted and termed the PIL to be not maintainable.

The petition by NGO Social Jurist, through advocates Ashok Agarwal and Kumar Utkarsh, said the very objective and purpose of the bill - to protect tiny tots from exploitation and unjust discrimination in the matter of nursery admission in private schools - is defeated by delay in finalising it by the governments and making it a law.

The high court, in its verdict, said till the assent is not granted, the legislative process is not completed and it is well settled that courts cannot issue a writ of mandamus to the governor directing him to pass a bill.

It is always for the governor to give his assent or withhold his assent to any Bill however desirable the legislation may be, the bench said.

While perusing several apex court judgments, the high court said it showed that after the Bill had passed through the legislature, it is presented to the governor and it is for the governor to declare at that stage whether he gives assent or he withholds the assent or refers the Bill to the President for assent.

"What the Governor does is peculiarly within his discretion and, exercising his discretion, he cannot feel bound on the act and advice of his ministers. Courts cannot control or interfere in this procedure and cannot direct the Governor or pass a writ to the Governor to grant assent or desist from granting assent.

"Article 200 of the Constitution within its fold indicates that the Governor must as soon as possible after the presentation of the Bill to him for his assent either return the Bill together with a message to the House/Houses to reconsider the Bill or any specified provision thereof," it said.

The NGO had said it made a representation to the authorities on March 21 requesting them to urgently finalise the bill. However, on April 11, a response was received from the Centre stating that the finalisation of the bill is still pending between the two governments.

It had said that more than 1.5 lakh admissions at nursery level take place every year in Delhi in private schools and children above three years of age are subjected to screening procedure which is against the letter and spirit of the Right to Information Act, 2009.

"There is no justification at all to not prohibit screening procedure at nursery level and therefore, respondents are required to finalise the bill as soon as possible to do justice to tiny tots of the country," the plea said.

It sought the court to direct the authorities to expedite the process of finalisation of the bill so far as it relates to the prohibition of screening procedure in the matter of admission of children at pre-primary level (nursery/ pre-primary) in schools.