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Legal Tactics or Due Process of Law

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Friday, February 14, 2020

A Delhi court on Feb. 12 offered a counsel to Pawan Gupta, one of the four death row convicts in the 2012 Nirbhaya gang rape and murder case, saying a convict is entitled to legal aid till his last breath. The date of execution, first fixed for Jan. 22, was postponed to Feb. 1 before the trial stayed it "till further orders". The condemned four have been using delay tactics to postpone their inevitable fate. But these tactics are legally available to them.

What is the status of the death warrants?
Death penalty has been held to be a valid form of punishment in India by the Supreme Court. But can convicts inordinately delay their execution by using procedural loopholes in the law? The answer, as the Nirbhya case suggests, is an emphatic yes.

A Delhi court on Feb. 12 offered Pawan Gupta, one of the four death row convicts in the Nirbhaya gang rape and murder case, legal aid after he said that he does not have a lawyer. Additional Session Judge Dharmender Rana expressed displeasure over delay from Pawan's side who said he has removed his earlier lawyer and will need time to engage a new oneDistrict Legal Services Authority (DLSA) provided Pawan's father with a list of its empanelled advocates to choose from.
Pawan has not yet filed a curative petition - the last and final legal remedy available to a person which is decided in-chamber. He also has the option of filing a mercy plea. Nirbhaya's parents and the Delhi government had moved the court on Feb. 11 seeking fresh death warrants for the four convicts after the Supreme Court granted liberty to the authorities to approach the trial court for issuance of fresh date for the execution of these convicts.

The date of execution, first fixed for January 22 in Tihar jail, was postponed for 6 am on February 1 by a January 17 court order. The trial court later, on January 31 stayed, "till further orders" the execution of the four convicts in the case, who are lodged in Tihar Jail. The Tihar jail authorities had filed a status report on Feb. 11 before the trial court stating that no legal option was exercised by any convict - Mukesh Kumar Singh (32), Pawan Gupta (25), Vinay Kumar Sharma (26) and Akshay Kumar (31) - in the last seven-day period, granted by the Delhi High Court.

The trial court had on February 7 dismissed the pleas of Delhi government and the Tihar jail authorities seeking fresh date for execution of the four death row convicts in the case. They had taken note of the high court's February 5 order permitting the convicts to exercise their legal remedies within one week. "It is criminally sinful to execute the convicts when law permits them to live. The High Court on February 5 has permitted the convicts, in the interest of justice, to exercise their legal remedies within one week from same order," the court had said.
"I concur with counsel for convicts that death warrants cannot be executed merely on basis of surmises and conjectures. The application is bereft of merit. The same is dismissed. The State is at liberty to move appropriate application as and when required," the judge had said.

Why are the four still alive?

The trial took a long time to reach the final conclusion
The 23-year-old physiotherapy intern, who came to be known as 'Nirbhaya' (fearless), was gang-raped and savagely assaulted on the night of December 16, 2012, in a moving bus in South Delhi. She died of her injuries a fortnight later in a Singapore hospital.
Six people - the four convicts, Ram Singh and a juvenile - were named as accused. The trial of the five adult men began in a special fast-track court in March 2013. Ram Singh, the prime accused, allegedly committed suicide by hanging himself in Tihar jail days after the trial began.
The juvenile, who was said to be the most brutal of the attackers, was put in a correctional home for three years. The juvenile was released in 2015 and sent to an undisclosed location amid concerns over a threat to his life. He, when released, was 20 years old. Mukesh, Vinay, Akshay and Pawan were sentenced to death in September 2013 by the trial court. It took four more years for the case to move from the trial court to the high court to the apex court. Each time, the verdict was the same: death.

In its Feb. 5 order, the Delhi High Court was critical of the delay caused by the authorities in seeking issuance of death warrants for the convicts as also of the "delay tactics" adopted by the convicts"All the authorities concerned were sleeping" and waited till December 2019 "for reasons best known to them" to seek issuance of death warrants, the high court said.
The Delhi government moved the trial court for issuance of black (death) warrants two years after the Supreme Court in 2017 had dismissed the review petition against the confirmation of death penalty. The authorities had also informed the court about the Delhi High Court's February 5 order which directed the convicts to take steps within a week, if they wished, to avail any remedy available under the law.
Pawan Jallad, a third generation hangman from Meerut prison, had arrived in Delhi on January 29. He was 23 years old when he first assisted his grandfather with a hanging in 1988 at the Patiala Central Jail. Now, he was two days away from the most publicised hanging of his career. But even as he tested the strength of the rope and put aside cloth bags to cover the heads of the convicts, news arrived that the four accused in the 2012 Delhi gang rape case will escape the hangman's noose, yet again. Jallad is still waiting.

When was the horrible crime committed?
Reacting to a tweet by ace lawyer Indira Jaising urging her to forgive the four men on death row for brutally raping that finally took her life, Nirbhaya's mother said on Jan. 17: “Even if God asks me, I won't forgive them.” The crime they committed is not worthy of mercy. And they have lived for more than seven years after India rose to demand swift death to the gang-rapists and killers.

In the early evening of 16 December (a Sunday) Pawan Kumar, a fruit vendor, Vinay, a gym instructor, Mukesh, Ram Singh’s younger brother, Akshay Kumar Singh, a cleaner on Ram Singh’s bus, and a juvenile whose name was never officially revealed as per the law of the land, met in his slum house and had a small ‘party’. They decided to set out together in Ram Singh’s bus to have some ‘fun’. They first lured Ram Adhar (aged thirty-five), a carpenter, to board the bus and robbed him of Rs 1500 along with his other belongings and dumped him near IIT Gate. They then drove towards Munirka from where they picked up a hapless couple.
Awindra Pandey, an engineer, and his friend who was named Nirbhaya by the media (until her family decided to reveal her name), a physiotherapy intern, had gone to the Select City Walk mall in Saket in south Delhi to watch a movie. After the show they exited the mall at around 8.30 p.m. Unable to get an autorickshaw to Dwarka, where they lived, they took one to the Munirka bus stand from where they hoped to get a bus that would take them to their destination.

After a while, they saw a white bus with yellow and green stripes on its sides approach them and stop right where they stood. It was a private chartered bus — generally not authorized to ply on commercial routes — from which a young boy was calling out for passengers going to Dwarka and Palam Mod. Awindra and Nirbhaya, unsure of when the regular bus would come and anxious to reach their homes before it got too late, decided to board the private bus. Little did they know they had boarded a bus to hell.
As they took their seats they saw three unkempt youngsters sitting in the driver’s cabin with the driver, while two others sat right behind in the front row of passenger seats — one on the left and the other on the right end. There were no other passengers in the bus. Instinctively, the young couple felt that something was not quite right.
One of the two seated in the front passenger seats walked towards Awindra, ostensibly to collect the bus fare. They paid twenty rupees between them. It dawned on them that the bus had not waited for any other passenger to board and had left with only the two of them, soon after they had got in. Strangely, the bus had curtains that were all drawn to ensure that nothing outside was visible to them. The door they had come in through had been locked from the inside after they had boarded.

As the bus drove towards Dwarka and reached the flyover leading to the airport, the three boys emerged from the driver’s cabin. They began to abuse Awindra, asking him where he was taking the girl so late in the night. Nirbhaya and Awindra retaliated to the verbal and physical abuse hurled at them. In the commotion that ensued, they heard one of the goons call out the names Vinay and Pawan, commanding them to bring out iron rods. Soon Awindra was hit on the head and legs with iron rods and he fell to the floor of the bus.

Nirbhaya shouted for help and tried calling the police on her mobile. She was pushed to the rear end of the bus and then pinned down on a passenger seat meant for three, where all six men took turns to rape her. As ‘punishment’ for her fierce resistance, she was hurt grievously with iron rods in ways so gory and sordid that it is difficult to put it in writingShe fainted a couple of times, but was beaten back to consciousness to undergo more unspeakable indignities.
She too was robbed of her belongings and was stripped naked. Having satisfied themselves, the men decided to get rid of the injured couple, and if possible, kill them. Awindra heard one of the assailants say that the couple was not to be left alive. A naked Nirbhaya was dragged by her hair to the front door and thrown out along with her companion, who was also without a shred of clothing on him. The bus tried to reverse and crush them to death but somehow the two managed to roll away and escape.
Awindra would live. Nirbhaya would die of her injuries, but not before testifying against the accused. And not before putting down her last wish in writing. In her four-page statement in Hindi to the magistrate five days after the barbaric attack on her, the 23-year-old paramedical trainee, who was admitted to a city hospital in a critical condition, pleaded with the authorities to "burn them alive""They should be hanged so that such an incident does not happen with another woman. They should be burned alive," the young woman, who died Dec 29, 2012 at a hospital in Singapore where she was flown by the government after a national outcry and massive protests, said in the statement.

Where are these tactical delays coming from?
In yet another horrific incident of burning and murder, a college lecturer in Wardha, Maharashtra, died on Feb. 10 after she was attacked by a stalker. The victim was walking to her college from a bus stop when her attacker hurled petrol at her and set her on fire in full public view. The incident has caused much outrage and now Maharashtra chief minister Uddhav Thackeray has said that the trial in the case will be carried out speedily.

But such promises of speedy trials do not inspire anymore. Case in point is the Nirbhaya gang rape and murder case that has dragged on for more than seven years. If such a high profile case can take so long to find closure, then it’s anybody’s guess how long lower profile but equally gruesome cases will take to see justice. Speedy trials should mean completion of the judicial process within a reasonably short time frame encompassing a clean appeals process.
So far as the delay on the part of the state is concerned, the Supreme Court has already ruled that a convict can’t be kept waiting for the gallows and inordinate delay in his/her execution is a ground for commuting the death penalty to life sentence. In Jagdish vs. State of Madhya Pradesh (2009), the Supreme Court ruled that the government’s failure to decide a mercy plea within a reasonable timeframe can be a ground for commuting the death penalty to life imprisonment. The State’s failure in taking expeditious decision amounted to violation of condemned prisoners’ right to live with dignity guaranteed under Article 21 of the Constitution, it had said.
“There can be no justification for the execution of a prisoner after much delay…the cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the de-humanising effects of the lengthy imprisonment prior to execution…What makes it worse for the prisoner is the indifference and ennui which ultimately develops in the family, brought about by a combination of resignation, exhaustion, and despair,” the top court had said.

But this is not a case of just the government delaying the execution of death sentence. This is about first the government delaying and then the four condemned using their legal options one by one, with sufficient pause between each attempt. By its judicious verdicts, the Supreme Court has managed to check arbitrariness on the part of the State. However, with the four convicts in the Nirbhaya case delaying their execution by strategically availing of their legal and constitutional remedies one by one, the Centre has moved the Supreme Court, saying the court’s rulings in death penalty cases are convict-centric and that it should lay down a set of victim-centric guidelines.
The Centre has urged the top court “to clarify and direct that if the convict of death sentence wants to file mercy petition, it would be mandatory for a convict of death sentence to do so only within a period of seven days from the date of receipt of death warrant issued by the competent court.”

It’s not an easy task to get a guilty verdict in a capital crime. Originally, for offences where the death penalty was an option, Section 367(5) of the Code of Criminal Procedure (CrPC) 1898 required courts to record reasons where they decided not to impose death sentence. In 1955, Parliament repealed Section 367(5), CrPC 1898, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.
When the CrPC was re-enacted in 1973, Section 354(3) required courts to record special reasons for awarding death sentence. Further, Section 366 of CrPC mandates that the convict shall not be executed unless the death sentence is confirmed by the high court concerned. In case the convict’s death sentence is confirmed by the high court, he/she can challenge it before the Supreme Court in appeal. After dismissal of his appeal, he has the option of filing a review petition and then a curative petition. Thereafter, the convict can file mercy petition before the president under Article 72 of the Constitution. Even the dismissal of mercy petition by the President can be challenged before the Supreme Court.

As pointed out by the Centre, it’s not that the convict doesn’t get enough opportunity to prove his/her innocence. But the real question is about finality of death penalty. Noting that finality of death penalty was extremely important; Chief Justice of India SA Bobde had last month said a condemned prisoner should not be under impression that it was an open-ended question.

Who needs to revisit the review process for death sentence?
The petition filed by the Centre seeks to limit the time provided for filing curative petition by the convict, curtail notice period to convict and his/her family from 14 days to 7 days, and impose a time limit on the procedure to be followed in case of multiple convicts facing death penalty. The petition provides the Supreme Court with a golden opportunity to strike a balance between the rights of accused and the rights of a victim to seek justice. These are the three issues worthy of discussion:

1) The first clarification sought in the petition is regarding the time limit within which a death row convict should file a curative petition, if he chooses to.
The concept of curative petition can be traced back to the Apex Court’s Constitution Bench judgment in Rupa Ashok Hurra v. Ashok Hurra. The power, however, is to be exercised only in rarest of the rare cases.
Curative petition is the last constitutional remedy a person can avail once his review petition has been rejected by the Supreme Court. However, no time limit has been fixed within which a curative petition should be filed. A clarification on this aspect shall not only help the State in its swift execution of the punishment, but shall also help convicts in availing an available remedy in a time-bound manner.
As seen in the Nirbhaya case, convicts continue to file curative petitions post issuance of death warrants. This creates inordinate delay in the justice system and also works towards wastage of state resources. A time-bound filing of curative petition shall help in preventing unnecessary delays and increase executive and judicial efficiency. Hence, it would be welcome to see the apex court take a step in this direction by making curative petitions time bound. In fact, it should be ensured that curative petitions remain time bound not in cases of death penalty, as sought in the petition at hand; but a time limit is extended to curative petitions in general to make sure speedy delivery of justice.

2) Second, the petition seeks to limit the time gap from date of communication of rejection of mercy petition to the date of execution from 14 days to 7 days.
The reason for providing such time period is more based in morality than legality. Compassion dictates that a death row convict should be allowed time to mentally prepare for the impending punishment, and to have a final meeting with his/her family members, considering that they could have to travel from remote locations. It also has legal implications such as providing time to make a will and to avail any remaining judicial remedy.
Though limiting the time period could work towards speedy execution of death penalty; it would not serve the interest of justice. Justice to the accused/convict is as important as justice to the victim. Curtailment of time period might lead to situations where the death row convict is unable to exercise the rights otherwise provided to him and that shall amount to violation of just, fair and reasonable requirement under Article 21 of the Indian Constitution.

3) Last, the petition seeks that in cases having multiple death row convicts, execution of penalty of a convict who has exhausted legal remedies should not be delayed merely because any of the co-convicts has initiated pardon proceedings. It is urged that the Apex Court mandate issuance of execution warrant by competent Court within seven days of rejection of mercy petition and execution of death sentence within seven days thereafter.
As on date, legal practice is that if one of the convicts has moved a mercy petition, or a review petition or a curative petition, the death penalty of any his co-convicts shall not be executed until a decision has been taken on such petition. It is argued that death row convicts prolong execution by exercising their legal remedies one after another.

As the law provides for a 14-day period between date of rejection of petition and execution of penalty, it gives ample time to another co-convict to move forward with his mercy petition, thus delaying execution. This can be seen from the Nirbhaya case, where due to pendency of petitions, death penalty of even those convicts who have exhausted all legal remedies could not be executed.

However, the demand for segregated execution comes with its own set of problems. The case of Harbans Singh v Union of India is a perfect illustration of the situation, where three people were awarded death sentence in a murder case. The three convicts filed mercy petitions at different stages, and proceeded with legal remedies separately. Out of the three, death penalty of one of the convicts was commuted to life sentence, which was later used by another convict as argument to get his sentence commuted. However, the third convict who did not file a review petition had already been hanged. The Apex Court writing through Justice YV Chandrachud expressed deep regret on the matter, calling the situation unfortunate.

Convicts of the same offence having participated in it with the same magnitude cannot be treated differently, unless special circumstances exist. A situation where one person faces death for his offence, while the other is commuted or pardoned, is in itself a defeat of the entire justice system. It is to prevent a similar situation from occurring that the execution of all co-convicts is stayed if decision on any one’s petition is pending.

It would be exceedingly unfortunate if laws were framed solely to decrease delay.

How rarely does India use death penalty?
In the last two decades, India’s execution rates have reduced drastically.
Article 21 of the Constitution of India guarantees to its citizens the right to life and personal liberty which includes the right to live with dignity. According to this article, no person shall be deprived of his life and personal liberty except according to the procedure established by law. This means that a person’s life and personal liberty can be disputed only if that person has committed a crime. Therefore the state may take away or abridge even right to life in the name of law and public order following the procedure established by law.
While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in the “rarest of rare” cases. In Jagmohan Singh vs State of UP (1973), then in Rajendra Prasad vs State of UP (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

The principles as to what would constitute the “rarest of rare” have been laid down by the top court in the landmark judgment in Bachan Singh vs State of Punjab (1980)Bachan Singh formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely left upon the court’s discretion to reach this conclusion.

The Supreme Court has always said that the death sentence should be given rarely. In Mithu vs State of Punjab (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional. It struck down Section 303 in the Indian Penal Code (IPC), which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case. The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murderes. It said all murders would come under the ambit of Section 302, where a court would have the discretion to award life term or death sentence.

The apex court has also laid down the principle of weighing aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered.First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?
The answers to these two questions in the Nirbhaya case are: Yes and Yes.

Battle between Schools & Mandir

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Friday, February 7, 2020

Thanks to the achievements and experiments of the Arvind Kejriwal government, the central issue in the upcoming Delhi elections is the quality of schools in the state. The AAP government has revamped government schools and wants to be judged for its work and results in education India's populist politicians don't care much about education reform because results take time and voters are easily swayed by what Kejriwal calls 'Hindu-Muslim'. So it's a welcome relief that they are debating schools.

What is the core issue in Delhi election?
Arvind Kejriwal's Aam Aadmi Party (AAP), a regional start-up in the world of politics, is seeking a second successive term in power in Delhi. And Kejriwal wants to be judged for his government’s performance in education.
His government's performance in education - along with healthcare - is an unusual campaign plank, and a consistent headline maker. AAP swept 67 of Delhi's 70 assembly seats five years ago, and hopes to repeat this performance on 8 February, largely on the back of its performance in education.

The AAP government runs 1,000 schools, attended by more than 1.5 million students. Education is free. In five years, he claims his government has succeeded in a way none of his predecessors had. The AAP government under the leadership of Arvind Kejriwal and his deputy Manish Sisodia, who holds the education portfolio, has allotted the highest funds to education, introduced new teacher training courses for students, and have infused money to improve ailing schooling infrastructure.
Overall outcomes of these efforts are visible. For instance, a Delhi government school Rajkiya Pratibha Vikas Vidyalaya (RPVV) in Dwarka was ranked number one among all government-run day schools in India, while two others made it to the top ten in 2019. Investing heavily in education has helped change the gloomy image - messy and badly-run - of state-run schools in a teeming city of nearly 20 million people. "The assumption was only poor children go to these schools. The rich and middle class prefer to send their children to private schools," says Shailendra Sharma, an education advisor to Kejriwal's government. “Anything free in India is perceived to be substandard.”
But in 2019, Kejriwal's schools, mainly attended by the city's underclass and children of poorer migrants, have outperformed their more expensive and posh counterparts. Some 96% of the 12th class students from state-run schools passed the school-leaving exam, compared to 93% from private schools. Such results have received estimable praise, most recently from Nobel-prize winning economist Abhijit Banerjee. Education outcomes in state-run schools can be better than the private ones, Banerjee said on Jan. 11 as he lauded Delhi government schools for "outperforming" their private peers. He said state agencies have been "generous" with resource allocation for education, which is visible in aspects such as teacher salaries and student results. Education is a state subject under the federal structure of India.

“Personally, I feel the people of Delhi are very happy with our work. Delhi people have thrown up many unexpected results in the past. In 2015, no one imagined that AAP, a new party, will bag 67 out of 70 seats. When we had no real heft, when people were saying our candidates will lose deposits, the people of Delhi had given an opportunity to a new party. This time, the question is whether the voting would be on work or Hindu-Muslim. I believe the people of Delhi are smart and they will reward work,” Kejriwal said in an interview with Indian Express recently. The ‘Hindu-Muslim’ reference was a jibe on the Bharatiya Janata Party (BJP), which is the ruling party at the centre and is accused by Kejriwal of playing divisive politics out of desperation.

Why have students returned to Delhi’s public schools?

Here is yet another proof that the best way for the government to show its commitment and achieve better results is to invest more.
From 2015 onwards, the AAP government has allocated a major amount of budget for introducing remarkable education sector amendments. In 2015-16, it allotted Rs 6,208 crore for the school and higher education sector. In the 2016-17 annual budget, the state government further increased education sector spending to Rs 8,642 crore (budgeted). In 2017-18, the Kejriwal government spent as much as Rs 9,888 crore and in 2018-19, it went up to Rs 11,201 crore (revised). In 2019-20, the budgetary allocation is a significant Rs 15,133 crore (budgeted).
Kejriwal has ploughed nearly a quarter of his government's budget into education - the highest in India - and appears to have spent the money wisely. (His predecessors in Delhi spent up to 16% of the budget on education; and India's states, on average, spend 14.8% of their budgets on education). "Government schools," says M Shariq Ahmed, principal of a "model" government school, "have now become a very liberating experience for students, who come from stressed backgrounds."

Education reforms are usually messy and controversial, but Kejriwal's government appears to have chosen simple initiatives to achieve a significant turnaround. Classrooms have been renovated, toilets are scrubbed regularly, and playgrounds cleaned. Students and parents alike have welcomed a controversial decision to put CCTV cameras in classrooms to monitor children. Smart-looking desks, digital learning, well-stocked libraries, functioning science labs, and special theme-oriented classrooms have helped make the once-dowdy schools attractive places of learning.

Furthermore, the AAP government took the crucial initiative of creating a three–tier library structure in the schools. In addition, all government schools have now functional drinking water and separate girls’ and boys’ toilets, electricity connection and 88.82% schools had computer facilities by the end of 2019.
If you build good schools and offer education free, you get more enrolments. There's also been a substantial expansion of capacity to cater to a growing number of students - 34% of Delhi's 4.4 million school-going children attend government schools, and their numbers are increasing. By the end of 2020, Delhi should have 55 new schools and 20,000 additional classrooms.
But building good infrastructure alone is never enough. It’s the teachers who will build the future of India.

When was the quality of teachers improved?
Delhi government in 2017 started a one-of-a-kind teacher training exercise across the city. The State Council for Education Research & Training (SCERT) undertook an extensive capacity building exercise for more than 36,000 teachers — 26,000 Trained Graduate Teachers (TGTs) and 10,000 Post Graduate Teachers (PGTs), who were teaching in schools run by the Delhi government. Keeping in mind the latest innovation in classroom learning, the concept of group-based learning has been introduced in teacher training so that the technique percolates to classrooms of Delhi government schools as well.
To further improve the quality of education in Delhi government schools and to enhance teacher’s instructive capabilities, the AAP government initiated a Teacher’s Training Program. The motive behind the program was to keep the teachers abreast with the contemporary knowledge of their subject. In 2018, 200 teachers received training by world’s top educators at Singapore’s National Institute of Education (NIE). These 200 teachers, after the completion of the course, were regarded as ‘mentor teachers.’ The trained teachers were assigned around five to six schools, which they visit regularly to observe classroom practices and provide on-site learning support to other teachers.

Other teachers have travelled to Finland and Cambridge in the UK to study school systems. The curriculum has also been tweaked imaginatively - classes on "happiness" and business motivation have been introduced. Mega parent-teacher meetings are held in all schools several times a year, encouraging interaction between illiterate parents, first generation learners and teachers.
With surveys indicating a record number of students unable to read and comprehend basic concepts at various classes and age groups, the AAP government launched an ambitious project named ‘Chunauti’ (‘Challenge’) in 2016 with the aim of seeking to check student dropout rates and improve the quality of education with special focus on the weakest students. The aim was to have all students in upper primary classes be able to read, write and do basic mathematics. It has been reported that Chunauti has brought visible improvement in the pass percentage of class IX.
But Chunauti hasn’t been without its share of controversy.

Where did the biggest controversy come from?
There's been criticism about some of the teaching methods in Delhi's government schools. The most contentious is "separating" - critics call it segregation - performing and non-performing students by putting them in different classrooms.
Last year, education activist Kusum Jain went to a Delhi court challenging Kejriwal's government to explain why students were "segregated". She says: "Segregation on the basis of intelligence is wrong at a time when we should all believe in inclusive education." Manish Chand, who worked as an intern teacher in a government school, says the ability-based "segregation" of students has "led to more divisions" among students. He found some teachers in his school calling students by the names given to the groups, and sometimes the "better performing students" refused to study or play with their more non-performing peers.

In its revolutionary zeal, the AAP government may have floundered on a basic principle when it decided to regroup students from class 6 to class 8 according to their learning abilities. Under a program called Chunauti 2018students from classes 6 to 8 were divided into three sections -Pratibha, Nishtha and Neo-Nishtha - according to their learning levels. They were tested for arithmetic, reading in language that was the medium of instruction, and in English.

Janaki Rajan, professor of education at Jamia Millia Islamia, New Delhi, says this segregation of students is extremely detrimental to children and has not only crushed their self-esteem and exterminated peer learning in class, but also eroded social diversity of the class. “All studies show us that students in mixed abilities group learn better. Why is the government then bent on doing the contrary? In addition, it is mostly the students from scheduled class, scheduled tribes and the Muslim community who land up in the Nishtha and Neo-Nishtha sections,”says Rajan, who was a former director of the State Council of Educational Research and Training, Delhi.

Another educationist, R. Govinda, who was vice chancellor at the National University of Educational Planning and Administration, says segregation of students does permanent damage to the self-esteem of students. “Branding of children and meddling with curriculum won’t work. Continuous professional development of teachers is the only way forward,” he says. The different sections also have different exams, and the Nishtha and Neo-Nishtha sections are taught with the help of special study material called Pragati Books.
But some teachers defend the system, and say it has actually helped improve results.
Students, they say, are separated in different sections on the basis of their reading and numeracy skills. Several independent surveys have found that Indian school children's reading and writing skills don't match the class they are in - a 2018 study by NGO Pratham found that nearly 73% of children in class three could not read class two lessons. "By separating the students, we are trying to get the teachers to give special attention to the ones who get left behind and often end up dropping out," says Shailendra Sharma, Kejriwal's adviser.

The government argues that this is the best way forward. A majority of the students who enter class 6 are from municipal corporation schools and already have a major learning lag. Except the 200-odd Sarvodaya schools out of 1,028, most of the Delhi government schools have classes from the sixth standard onwards. Sharma says some students were so weak that they did not understand a thing in the classroom“The teacher was rushing to complete the syllabus and only the front benchers were abreast with what was being taught. Those at the back had no idea what was going on,” he says, adding that the chasm in learning levels was so massive that peer learning was actually not happening in class.

Other controversies

The directorate of education ruled last year that if a student fails twice in a class he or she should be counseled to opt for open schooling options. Information obtained by lawyer Ashok Agarwal shows that in the 2018-19 session, the Delhi government denied readmission to 1.02 lakh students out of 1.55 lakh who failed in classes 9 to 12. The government, however, claims that the students who fail would anyway drop out and the government was doing them a service by telling them about other options and even holding classes for them.

The government has also been cornered for slashing down the syllabus by 25 per cent in a manner that the critics find ‘arbitrary’. The government argues that it’s the age of the Internet and Google and the amount of textbook information one needs now is less. The idea seems to have caught on with Union Human Resource Development (HRD) minister Prakash Javadekar as well, and he announced that half of the syllabus in CBSE schools will be cut from 2019.

In addition, there is the accusation on Delhi government of collecting voter ID details of students and their family members. The president of the Delhi Parents’ Association said parents are receiving calls asking them if they are happy with the work done by Delhi government and argues it is a breach of privacy.

Some statistics are, however, undeniable. The 2018 CBSE class 12 results showed a pass percentage of 90.68 in government schools, better than the 88.35 per cent of private institutions and even the national average of 83.01 per cent. It’s working. But will it work with the voters?

Who is Kejriwal up against?
When the people of Delhi vote on Feb. 8, they will have to decide what exactly they want in the next five years. More temples of learning or more learning about temples?
A few weeks ago, Kejriwal made an impassioned plea to voters in an election campaign. “We've worked hard to improve our schools, the education system. Who will take care of the education of your children if you vote for any other party? Just give it a thought,” he said. Kejriwal wants to prove populist politicians wrong: he's made education the centre-piece of his campaign.

India's populist politicians don't usually talk about schools and colleges and hospitals in campaign speeches - education reform, they know, doesn't fetch votes, because results take time, and voters appear to be keener on more immediate outcomes. "Today's politics wants instant results," says Delhi's education minister Manish Sisodia.

The other side is focusing on Politics 101. Prime Minister Narendra Modi and his party, the BJP, this weekend face their first electoral test since deadly anti-government protests erupted nearly two months ago, with the divisive turmoil likely to win them votes at polls in the capital. The BJP won a bigger majority in a general election in May, but it has lost a string of state elections since then. The protests, in which at least 25 people have been killed, erupted across the country in mid-December, after the BJP passed the Citizenship Amendment Act (CAA), 2019, which critics say violates India’s secular constitution and discriminates against minority Muslims.
Without a well-known leader in the capital, analysts say the BJP has intensified a policy of campaigning on Modi’s personal appeal, rather than on development issues. At the same time, the protests have highlighted the communal fault line, which could help his party secure the Hindu vote in the capital and elsewhere, analysts say. “Rightly or wrongly, they are largely seen as Muslim protesters. There is a polarisation between Hindus and Muslims that suits the BJP,” said Harsh Pant, a fellow at New Delhi-based think-tank the Observer Research Foundation.

The BJP has highlighted the work of Modi’s central government since its re-election last May, in particular changes that have appealed to the party’s Hindu base such as abrogation of the special status of the state of Jammu and Kashmir and a court ruling, backed by the government, clearing the way for the construction of a Hindu temple in Ayodhya. “What they seem to be doing is fighting state elections on Modi’s popularity,” Pant told Reuters.
The Prime Minister, addressing a well-attended rally at Karkardooma on February 3, took the lead in attacking the BJP’s opponents in the strongest possible words. A number of BJP candidates also addressed the crowd and raised slogans like 

“Rasthravaad Jeethega aur Shaheen Bagh haarega” (nationalism will win and Shaheen Bagh will lose) and “Modi hai toh mumkin hai” (If it’s Modi, it’s possible).

The Prime Minister reminded the crowd that this election would decide the future course of Delhi in this decade and take it to new heights of prosperity. He made the promise of Jahaan jhuggi waheen makaan (where there is slum, there will be houses) and held the Aam Aadmi Party-led State government responsible for not implementing the Pradhaan Mantri Awas Yojana (a central-government sponsored housing construction scheme for the poor) in Delhi. Towards the end of his speech, he spoke about the protests at Jamia and Shaheen Bagh, underlining them as staged protests to meet political ends patronised by the Congress and the AAP.
Uttar Pradesh Chief Minister Yogi Adityanath also addressed a few rallies. He praised the government of Uttar Pradesh and the Central government for fulfilling the long-standing promise of building a Ram temple in Ayodhya. He said “the Kejriwal government that was not able to give the people of Delhi decent water to drink was busy serving Biryani to those who were protesting at Shaheen Bagh”. He emphasised that the BJP would not withdraw the CAA as this would be against the interest of “Akhand Bharat” (the undivided India). He alleged that those who were supporting terrorists in Kashmir were coming to Shaheen Bagh and raising slogans of Azadi (independence). He added that those who spoke in favour of Pakistan should be prepared to take bullets. Adityanath established a political record of sorts by mentioning Pakistan eight times in 48 seconds in a speech in Delhi this week.

Polling data for Delhi shows the BJP narrowing the gap with - but still trailing - the Aam Aadmi Party over the past week. If it’s Modi, is it still possible?

How can Delhi’s education outcomes improve even more?
Regardless of who wins, it is hoped that the good work in the field of education will continue. From 2015 onwards, the AAP government has not just allocated a major amount of budget for introducing education sector amendments – it has also increased the amount consistently in the past four years. However, there are many challenges yet to be addressed. While the government has brought visible improvement in many spheres related to state run schools, the battle is only half won.

While the AAP government has done well to change the perception on government run schools by infusing more funds and plucking low hanging fruits, many long standing problems remain to be addressed. For instance, despite all the efforts, the enrolment rate in Delhi state schools has fallen. According to a Praja Foundation report, ‘State of Public School Education in Delhi’, published in March 2019, enrolment rate in Delhi government schools has fallen by 8% from 2013-14 to 2017-18. In government schools, enrolment rate for Class I saw a dip of 4.8% in 2017-18.

Another survey by Praja Foundation shows that of the 2,59,705 students who got enrolled for class IX in Delhi government schools in 2014-15, 56% students did not reach class XII in 2017-18. This shows very poor retention in the state-run schools. Data available on the state government site ‘edudel’ indicates that a mammoth 55% of students did not go to the Class X in the academic year 2017-18 from Class IX (academic year 2016-17). This suggests a large number of students failed in Class IX.
Similarly, another report suggests that Delhi government schools are operating with only 57% regular teachers while the rest of the responsibility is with guest teachers. A huge gap persists in the sanctioned and filled positions, both among the teaching and non-teaching staff in Delhi government schools. According to information made available to the public through RTI applications, it can be said that out of 1,029 schools only 301 schools across Delhi have science as a subject.

So, while the government revamped the infrastructure, it failed to recruit permanent teachers. It introduced new programs, but enrolment rate witnessed a fall. Notwithstanding these limitations, the AAP government in its first full tenure brought a visible transformation in public education system in the national capital. The education system of Delhi is being adopted by other states as well. The government managed to bring major changes in the education system and was able to overcome the first set of major challenges they faced.

The greatest challenge to India is unemployment. Much of that problem is linked to the lack of skills in India’s educated youth. And much of that is linked to the state of India’s education infrastructure and curriculum. It’s heartening to finally find a politician in India who dares to put his future at stake by asking voters to judge him on his commitment to schools and hospitals. It’s a risky strategy but Kejriwal has been risking a lot all his life.

An IIT Kharagpur graduate, Arvind Kejriwal joined as an Indian Revenue Service officer in 1995 but quit his high profile job in 2012 to form the Aam Admi Party (AAP) after leading an anti-corruption movement in 2012 with social activist Anna Hazare. He has learnt one vital political lesson after his party’s poor performance in the General Elections of 2014 and 2019: show them what you can do as a state leader and then seek a national mandate.

Modi should know this strategy well. After all, the country voted him to power in the hope that he will implement the ‘Gujarat model’ of governance.


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