Maintainability of writ without exhausting alternative remedy:

1. The high court is not deprived of its jurisdiction to entertain a petition under Art 226
merely because in considering the petitioner’s right to relief question of fact may fall
to be determined. In a petition under Art 226 the high court has jurisdiction to try
issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but
the discretion must be exercised on sound judicial principles. 1

WRIT AGAINST PIRVATE EDUCTIONAL INSITITUTION:

1. Interference under Art 226 of the constitution to issue a writ of mandamus against a
private educational institution, would be justified only if a public law element is
involved and if it is only a private law remedy no writ petition would lie. 2
2. Writ to award compensation for death due to tortuous act being not maintainable,
disputed question of fact being involved and tortuous liability clearly denied,
entertainment of petition and reference of matter to arbitrator by High court not
proper.3
3. The distinction in a writ petition under article 226 and 32 of the constitution is that
the remedy under art 32 is available only for enforcement of fundamental rights,
while under art 226 of the constitution , a writ court can grant relief for any other
purposes also- A.K. GOPALAN V STATE OF MADRAS AIR 1950 SC 27;

 A writ of mandamus may be issued in favour of a person who establishes a legal right in
himself. It may be issued against a person who has a legal duty to perform but has failed or
has neglected to do so. Such a legal duty emanates by operation of law. The writ of
mandamus is most extensive in regard to its remedial nature. The object of mandamus is to
prevent disorder emanating from failure of justice and is required to be granted in all cases
where law has established no specific remedy.
 The literal meaning of the word mandamus is command. This prerogative remedy of
mandamus is used for enforcing the performance of public duties by public authorities of all
kinds.
 Writ of mandamus demands some activity on part of the person or body to whom it is addressed.
 The demand is to perform a public or quasi-public duty which the body or person has refused to
perform and the performance of which cannot be enforced by any other legal remedy.
4. Since private educational institutions perform public functions and are subject to state
education rules, a Writ Petition can be filed against them. Many other High Courts have
declared Article 226 of the Indian Constitution grants writ jurisdiction to a private
unaided educational institution. The High Court Of Gauhati has upheld this through the
Learned Single Bench. 4

1
STATE OF KERALA V. M.K. JOSE (2015)9 SCC 433; SEE ALSO GUNWANT KAUR V. MUNICIPAL COMMITTEE
(1969)3 SCC 769

2
K. KRISHANAMACHARYULU V. SRI VENKATESHWARA HINDU COLLEGE OF ENGG. (1997) 3 SCC 571
3
T.N ELECTRICITY BOARD V. SUMATHI AIR 2000 SC 1603
4
MUKTI NATH GOGOI V. THE STATE OF ASSAM AND 8 ORS (WP(C)/5671/2018).
 5. The Full Bench decision rendered by the Allahabad High Court in Roychan Abraham –v-
State of U.P. reported in AIR 2019 All 96, was also cited to submit that private institutions
imparting education to students from the age of six years and onwards, including higher
education perform a public duty; such a public duty was in the nature of State function and
accordingly such institutions become amenable to the Court‘s writ jurisdiction under Article
226 of the Constitution of India.
6. The power of judicial review by the High Courts in the country emanates from Article 226 of
the Constitution of India. Akin to the power bestowed to the Supreme Court of India under
Article 32 which is placed in Part III of the Constitution of India thereby making it a
fundamental right in its own standing, it is axiomatic to state that the scope of the power
under Article 226 is much wider as compared to powers conferred under Article 32. The
reason for such an exposition is an all-important, distinguishing feature: writ applications
under Article 32 can be pressed to enforce only a fundamental right(s). However, in the case
of Article 226, in addition to the enforcement of a fundamental right, a petitioner can also
seek the enforcement of any legal right.
7. Case V.R. Rudani (supra) and V. Sadasivan (supra), for the Court‘s consideration are as
follows: a) A writ of mandamus can be issued to a private body/authority under Article 226
of the Constitution of India.
b) Such a writ can only be issued to such a private body/authority if such an authority is
discharging a ‘public function’ and the decision sought to be corrected or enforced must be
in discharging a public function.
c) The scope of mandamus is determined by the nature of the duty to be enforced, rather
than the identity of the authority against whom it is sought.
d) A body is performing a ‘public function‘ when it seeks to achieve some collective benefit
for the public or a section of the public and is accepted by the public or that section of the
public as having authority to do so. Bodies therefore exercise public functions when they
intervene or participate in social or economic affairs in the public interest.
e) If the private body is discharging a public function and the denial of any right is in
connection with the public duty imposed on such body, the public law remedy can be
enforced.
f) The duty cast on the public body may be either statutory or otherwise and the source of
such power is immaterial, but, nevertheless, there must be a public law element in such
action.

 Mandamus is a command issued to direct any person, corporation, inferior courts or govt,
requiring him or them to do some particular thing therein specified which appertains to his
or their office and is in the nature of public duty. 5
 The writ of mandamus is equipped to serve as a judicial control over administrative actions.
This writ is issued against a private body or person if it fails to discharge a public function
cast upon it either by statute or otherwise. There must be a public law element in the
action.6
5
D. D. BASU , INDIAN CONSTITUTIONAL LAW (KAMAL LAW HOUSE, KOLKOTA , VOL.2, 5TH EDN., 2021) p.1845

6
BINNY LTD V. SADASIVAN (2005)6 SCC 657
  In public law, claim for compensation is a remedy available under art 32 and 226 for the
enforcement and protection of fundamental and human rights. The court may, in an
appropriate case, award compensation to victim for infringement of fundamental rights.
Such a claim, based on strict liability by resorting constitutional remedy in distinct from, and
in addition to, the remedy in private law for damages for tort. It is in fact an innovation of a
new tool with the court which are protectors of the civil liberty of the citizen. 7

RIGHT TO EDUCATION – Article 21A

 The right to education was initially not included as a fundamental right in the COI and was
included as DPSP under Art 45 which required the state to endeavour to provide, within a
period of 10 years.
 Children require a healthy and supportive environment to grow and develop. Children of
our country have constitutionally guaranteed fundamental rights to live with dignity and to
have access to education in an environment that is safe, protective and conducive to growth
and development. Everyone in school has a role to play in ensuring good safety, healthy and
secure environment within the school; be it teachers, special needs assistants, visitors and
contractors and students themselves.8 This Manual on Safety and Security of children in
Schools will act as comprehensive guidelines for the Education Departments, Educational
Boards, school staff, students etc.

DUTY TO CARE BY SCHOOL AUTHORTY:

 DUTY TO CARE VARIES FROM SITUATION TO SITUATION WHEREAS IT WOULD BE THE DUTY
OF THE TEAHER TO SUPERVISE THE CHILDREN IN THE PLAYGROUND BUT THE SUPERVISION,
AS THE CHILDREN LEAVE THE SHOOL, MAY NOT BE REQUIRED IN THE SAME DEGREE AS IS
THE PLAY FIRED9.
 Blacks law dictionary for duty to care and duty to act

7
D.D.BASU, SHORTEST CONSTITION OF INDIA VOL. 2 (LEXISNEXIS, GURGAON, 15TH EDN., 2018) P. 1059

8
MANUAL ON SAFETY AND SECURITY OF CHILDREN IN SCHOOLS 2021
9
K.Veeraraghavan vs The Secretary To Government Tamilnadu WP No-
35052/2012
  Please find enclosed a copy of 'Guidelines on School Safety and Security', developed
by this Department for fixing the accountability of the School Management in the
matter of Safety and Security of Children studying in Government, Government-aided
and Private Schools, in pursuance of the order of Hon'ble Supreme Court in Writ
Petition (Criminal) No. 136 of 2017 and Writ Petition (Civil) No. 874 of 2017; and in
line with the provisions contained in the National Education Policy, 2020.
 In pursuance of the order of Hon’ble Supreme Court in the Writ Petition (Criminal)
No. 136 of 2017 and Writ Petition (Civil) No. 874 of 2017 and decision taken by
Ministry of Education (MoE) to frame guidelines for fixing the accountability of the
School Management in the matter of safety of the children; MoE has recommended
the Guidelines on School Safety and Security (2021) for fixing the accountability of
the School Management in the matter of Safety of the Children studying in all Schools
including Private Schools. 10
 This Guideline has been developed following an ‘accountability framework’ with the help of
existing legal provisions; ‘whole school approach’ by integrating safety and security aspects
in education itself, by including deliberations upon the health, physical, socio-emotional,
psycho-social and cognitive aspects of school safety and security; and at the same time
‘addressing multi-sectoral concerns’ to further create a safe society, giving
recommendations for the other Ministries and Departments in addition to Education
Department.
 CCTV in schools needs to be monitored and maintained regularly
 The chemicals and instruments must be kept safely beyond the easy access of children and
should be used only under supervision.
 Special care should be taken to see that children do not move, around the hazardous and
dangerous points.

Strict liability:
 In both tort and criminal law, strict liability exists when a defendant is liable for
committing an action, regardless of what his/her intent or mental state was when
committing the action.

10
Guidelines on School Safety and Security (2021)