Supreme Court’s Judgement on the National Curriculum Framework for School Education (NCFSE), 2002

(An important judgement of India’s Supreme Court, dealing with education and the notions of Dharma, religion, secularism, the teaching of Sanskrit, etc.)

(extracts)

In the Supreme Court of India Original Civil Jurisdiction Writ Petition (Civil) No. 98 of 2002
Ms. Aruna Roy and others – Petitioners versus Union of India and others – Respondents

Judgment by Justice M. B. Shah:

Non-consultation with CABE

… the contention of the learned senior counsel for the petitioners that as CABE is not consulted or its approval is not sought by the Government before framing the NCFSE-2000, the said policy requires to be set aside cannot be accepted.

… we hold that non-consultation with CABE cannot be held to be a ground for setting aside the National Curriculum Framework for School Education (NCFSE) as

 

1. CABE is not a statutory body.

2. There is nothing in the resolution passed by the Government constituting the CABE in 1986 and 1990 that CABE is required to be consulted before framing NCFSE. Functions of the CABE are mainly to advise the Government and co-ordinate between the Centre and State in implementing the National Education Policy.

3. For one or other reason, it is not reconstituted after 1994, may be that ex-officio members at present constitute CABE. However, we are not required to decide why the CABE is not reconstituted. It is for the Government or for the Parliament to decide the said question and to reconstitute the same as it is or by making it a compact Board as suggested by the Prime Minister which is evident from the letter dated 12th February, 1997 written by the Deputy Secretary, Government of India, for reconstitution of CABE.

4. NCERT is constituted under the Rules. It also consists of ex-officio members as well as representatives of Parliament and experts in education.

Violation of Article 28

Learned counsel for the petitioners vehemently objected and pointed out that NCFSE pertaining to education for value development is violative of Article 28 of the Constitution.

Before referring to the contention raised by the learned counsel for the parties, we would refer to the relevant part of NCFSE which reads thus:

 

“1.4.7. Education for Value Development

The past five decades after independence have witnessed constant erosion of the essential social, moral and spiritual values and an increase in cynicism at all levels.

A significant factor that merits urgent attention now is religion. Although it is not the only source of essential values, it certainly is a major source of value generation. What is required today is not religious education but education about religions, their basics, the values inherent therein and also a comparative study of the philosophy of all religions.” [Italics and emphasis retained as in the judgment]

It is submitted that some of the recommendations in the curriculum proposed by NCERT are virtual and verbatim copy of the report of the S. B. Chavan Committee (which was appointed by the Parliament in 1996)… At this stage we would quote the relevant part of the S. B. Chavan Committee’s report as under:

 

“… 12. In view of the diverse character of our country, it is essential that certain National Values are also imbibed by our young students. They should be acquainted with the history of India’s freedom struggle, cultural heritage, constitutional obligations and the features comprising our national identity. The Committee feels that some of these national values can be imparted indirectly at the primary stage while at the middle and secondary level, these can be included in the curriculum.

38. With the advancement in information technology, audio-visual media has dominated the information / knowledge system of our country. Under the invasion of Western culture penetrating into India through the media, the young are being literally moved away from our age-old traditions and values any attempt to instil indigenous values in students in schools, colleges are overshadowed by the overwhelming impact of Western culture. The Committee is of the considered view that stringent efforts are required on the part of the Govt. to monitor the programmes being aired / telecast through its media. Similar steps need to be taken so as to have a mechanism of quality control of programmes, under the control of private agencies too.”

Undisputedly, the aforesaid S. B. Chavan Committee’s report, was placed before the Parliament for discussion. None can also dispute that past five decades have witnessed constant erosion of the essential social, moral and spiritual values and increase in cynicism at all levels. We are heading for a materialistic society disregarding the entire value based social system. None can also dispute that in secular society, moral values are of utmost importance. Society where there are no moral values, there would neither be social order nor secularism. Bereft of moral values secular society or democracy may not survive. As observed by the Committee, values are virtues in an individual and if these values deteriorate, it will hasten or accelerate the break down of the family, society and nation as a whole. In a society where there is constant evaporation of social and moral values for getting property, power or post, is it not advisable to have solid social foundation from base level so that a grown up person would fight against all kinds of fanaticism, ill-will, violence, dishonesty, corruption and exploitation? Answer would obviously be ‘yes’.

Further, for controlling wild animal instinct in human beings and for having civilized cultural society, it appears that religions have come into existence. Religion is the foundation for value base survival of human beings in a civilized society. The force and sanction behind civilized society depends upon moral values. Philosophy of co-existence and how to co-exist is thought over by the Saints all over the world which is revealed by various philosophers.

Further, it appears to be a totally wrong presumption and contention that knowledge of different religions would bring disharmony in the society. On the contrary, knowledge of various religious philosophies is material for bringing communal harmony as ignorance breeds hatred because of wrong notions, assumption, preaching and propaganda by misguided persons

The NCFSE would also be in consonance with the fundamental duties enshrined under Article 51A of the Constitution, which inter alia provides as under:

 

“51A. Fundamental duties. - It shall be the duty of every citizen of India:

(a) - (d) …

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; …

It may be that the basics of all religions may help in achieving the objects behind fundamental duties…

In A. S. Narayana Deekshitulu v. State of A. P. and others [(1996) 9 SCC 548], in a concurring judgment Justice Hansaria aptly pointed out the difference between ‘religion’ and ‘dharma’ and observed thus:

 

“143. Our dharma is said to be ‘Sanatana’ i.e. one which has eternal values; one which is neither time-bound nor space-bound. It is because of this that Rig Veda has referred to the existence “Sanatan Dharmani.” The concept of ‘dharma’, therefore, has been with us for time immemorial. The word is derived from the root ‘Dh.r’ which denotes ‘upholding’, ‘supporting’, ‘nourishing’ and ‘sustaining’. It is because of this that Karna Parva of the Mahabharata, Verse 58, Chapter 69 says:

“Dharma is for the stability of the society, the maintenance of social order and the general well-being and progress of humankind. Whatever conduces to the fulfilment of these objects is Dharma; that is definite.” (This is the English translation of the verse as finding place in a Convocation Address by Dr. Shankar Dayal Sharma)"

It is crystal clear that the word “religion” has different shades and colours. Important shade is dharma (duty). That is to say, duty towards the society and the soul. In Santosh Kumar and others v. Secretary, Ministry of Human Resources Development and another [(1994) 6 SCC 579], the Court negatived the contention that teaching of Sanskrit language as an elective subject would act against secularism as accepted by nine-judge Bench of this Court in S. R. Bommai v. Union of India [(1994) 3 SCC 1]…

Therefore, in our view, the word ‘religion’ should not be misunderstood nor contention could be raised that as it is used in the national policy of education, secularism would be at peril. On the contrary, let us have a secularistic democracy where even a very weak man hopes to prevail over a very strong man (having post, power or property) on the strength of rule of law by proper understanding of duties towards the society. Value based education is likely to help the nation to fight against all kinds of prevailing fanaticism, ill-will, violence, dishonesty, corruption, exploitation and drug abuses. As stated above, the NCF 1988 was designed to enable the learner to acquire knowledge and was aimed at self-discipline, courage, love for social justice etc. truth, righteous conduct, peace, non-violence which are core universal values that can become the foundation for building the value based education. These high values cannot be achieved without knowledge of moral sanction behind it. For this purpose, knowledge of what is thought over by the leaders in past is required to be understood in its true spirit. Let knowledge like the sun shine for all and there should not be any room for narrow-mindedness, blind faith and dogma. For this purpose also, if basic tenets of all religions over the world are learnt, it cannot be said that secularism would not survive.

Learned counsel for the petitioners heavily relied upon Article 28 of the Constitution for contending that national curriculum is against the mandate of the said Article. For appreciating the said contention, we would first refer to Article 28:

 

“28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions:

(1) No religious instruction shall be provided in any educational institution wholly maintained out of state funds.

(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.”

In substance, the aforesaid article prohibits imparting of religious instructions in any educational institution wholly maintained out of State funds At the same time, there is no such prohibition where such an educational institution is established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

Further, no person attending any educational institution recognised by the State or receiving aid out of State funds could be compelled to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution. So the entire emphasis of the Article is against imparting religious instruction or of performing religious worship. There is no prohibition for having value based social life in a society which is degenerating for power, post or property. In DAV College v. State of Punjab [(1971)2 SCC 269] the constitutional validity of certain provisions of Guru Nanak University, Amritsar, Act 21 of 1969 was challenged by DAV (Dayananda Anglo Vedic) College Trust. The Trust was formed to perpetuate the memory of Swami Dayananda Saraswati who was the founder of an organisation known as Arya Samaj… The court further observed (in para 26) as under:

 

“26. … the petitioners have still to make out that Section 4(2) implies that religious instruction will be given. We think that such a contention is too remote and divorced from the object of the provision. Religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular sect or denomination. To provide for academic study of life and teaching or the philosophy and culture of any great saint of India or relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions.”

The learned counsel for the petitioners next contended that if philosophy of religion spills into teaching religious tenets, it would fall under “religious instructions.” In our view, this submission is hypothetical, premature and without any basis as it is on the assumption that under the guise of religious philosophy, religious instructions would be imparted.

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Additional Submissions

A. Regarding Sanskrit Language

Learned senior counsel Mr. Vaidyanathan further submitted that Sanskrit language is imposed in an unjustified manner.

For Sanskrit language being imposed, it has been pointed out that the allegation is wholly wrong. The provisions only enable this language to be taught to those students who wish to study it. Sanskrit may be made available as an additional option at the secondary stage and as a suitable elective course to all those who wish to study it at the higher secondary stage. It is also pointed out that Sanskrit is one of the official languages of India. Reliance is placed on Santosh Kumar’s case (Supra), wherein this Court has emphasized the importance of Sanskrit study and declared the omission of Sanskrit from CBSE syllabus as unjustified.

In the aforesaid case, the Court observed thus:

 

“19. … we entertain no doubt in our mind that teaching of Sanskrit alone as an elective subject can in no way be regarded as against secularism. Indeed, our Constitution requires giving of fillip to Sanskrit because of what has been stated in Article 351, in which while dealing with the duty of the Union to promote the spread of Hindi, it has been provided that it would draw whenever necessary or desirable, for its vocabulary, primarily on Sanskrit. Encouragement to Sanskrit is also necessary because of it being one of the languages included in the Eighth Schedule.

20. We therefore conclude by saying that in view of importance of Sanskrit for nurturing our cultural heritage, because of which even the official education policy has highlighted the need of study of Sanskrit, making of Sanskrit alone as an elective subject, while not conceding this status to Arabic and / or Persian, would not in any way militate against the basic tenet of secularism. There is thus no merit in the first objection raised by the Board.”

B. Regarding Vedic Astrology

It is pointed out that what has been mentioned in the curriculum is ‘astronomy’ and not ‘vedic astrology’. Astronomy is well known science different from vedic astrology.

C. Regarding Vedic Mathematics

It is submitted that there is no question of imposition of vedic mathematics. It has not been made part of the curriculum but suggested as a computational aid. In teaching mathematics, the teachers are free to merely use it or not as an available idea. It is pointed out that merely because epithet ‘vedic’ is used, the petitioners has attempted to attribute something of religion to it. The word ‘vedic’ in this context indicates only time factor.

D. Regarding Hindu Festivals being treated as National Festivals

It is submitted that this is a clear distortion as the curriculum book no where says so. On the other hand, it says:

 

“Schools may organise joint celebration of festivals of major religions and cultural groups. This would generate better understanding of and appreciation and respect for one another and create a tolerant and cohesive society.”

E. It is contended that instead of emphasizing development of scientific temper and imparting knowledge to children, to help them develop their own views something contrary is tried to be implemented. There is also distortion of version of history by using the words “Mughals invaded the country as against Britishers conquered the country.”

The aforesaid submission does not deserve any consideration hence rejected.

F. Learned senior counsel, Mr. Vaidyanathan, vehemently submitted that NCFSE also runs contrary to Article 14 of the Constitution in as much as it seeks to categorise students into ‘gifted’ and otherwise for separate treatment only on the basis of ‘spiritual quotients’ and ‘intelligence quotients’. It is his contention that ‘intelligence quotient’ has been banned through out by the United States of America as not being the correct method to test students. ‘Spiritual quotient’ is not valid anywhere else in the world. Therefore, the basis of such classification is wholly arbitrary.

The aforesaid question cannot be decided in a writ petition under Article 32. It is for the experts to lay down the criteria for evaluating the merits / gradation / standard of the students and to decide whether criteria adopted in U.S.A. should be followed or not…

In the result, this petition is dismissed with no order as to costs. Interim relief granted by this Court stands vacated. IAs seeking intervention in this matter stand disposed of accordingly.

Justice M. B. Shah New Delhi September 12,2002

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Judgment by Justice D. M. Dharmadhikari:

I have carefully gone through the erudite and well considered opinion of learned brother M. B. Shah, J. I am in respectful agreement with this conclusion but I would like to add my own reasons. I am in agreement with the view that education of religions can be imparted even in ‘educational institutions fully maintained out of State funds’…

Education in India which is to be governed by secular ethos contained in its Constitution and where ‘religious instructions’ in institutions of the State are forbidden by Article 28(1), the ‘religious education’ which can be permitted, would be education based on ‘religious pluralism’. The experiment is delicate and difficult but if undertaken sincerely and in good faith for creating peace and harmony in the society is not to be thwarted on the ground that it is against the concept of ‘secularism’ as narrowly understood to mean neutrality of State towards all religions arid bereft of positive approach towards all religions...

The debates in the Constituent Assembly when Article 28 of the Constitution was being considered are Illuminating and helpful in understanding the expression “religious instruction” used in the said Article. See the following part of the debates:

“Pandit Lakshmi Kanta Maitra: May I put the Hon’ble Member one question? There is, for instance, an educational institution wholly managed by the Government, like the Sanskrit College, Calcutta. There the Vedas are taught,, Smrithis are taught, the Gita is taught, the Upanishads are taught. Similarly in several parts of Bengal there are Sanskrit institutions where instructions in these subjects are given. You provide in article 22(1) that no religious instruction can be given by an institution wholly maintained out of State funds. These are absolutely maintained by State funds. My point is, would it be interpreted that the teaching of Vedas, or smrithis, or Shastras or Upanishads comes within the meaning of a religious instruction? In that case all these institutions will have to be closed down.

The Hon’ble Dr. B. R. Ambedkar: Well, I do not know exactly the character of the institutions to which my Friend Mr. Maitra has made reference and it is, therefore, quite difficult for me.

Pandit Lakshmi Kanta Maitra: Take for instance the teaching of Gita, Upanishads, the Vedas and things like that in Government Sanskrit Colleges and schools.

The Hon’ble Dr. B. R. Ambedkar: My own view is this, that religious instruction is to be distinguished from research or study. Those are quite different things. Religious instruction means this. For instance, so far as the Islam religion is concerned, it means that you believe in one God, that you believe that Pagambar the Prophet is the last Prophet and so on, in other words, what we call “dogma”. A dogma is quite different from study.

Mr. Vice-President: May I interpose for one minute? As Inspector of Colleges for the Calcutta University, I used to inspect the Sanskrit College, where as Pandit Maitra is aware, students have to study not only the University course but books outside it in Sanskrit literature and in fact Sanskrit sacred books, but this was never regarded as religious instruction; it was regarded as a course in culture.

Pandit Lakshmi Kanta Maitra: My point is, this. It is not a question of research. It is a mere instruction in religion or religious branches of study.

I ask whether lecturing on Gita and Upanishads would be considered as giving religious instruction? Expounding Upanishads is not a matter of research.

Mr. Vice-President: It is a question of teaching students and I know at least one instance where there was a Muslim student in the Sanskrit college.

Shri H. V. Kamath: On a point of clarification, does my friend Dr. Ambedkar contend that in schools run by a community exclusively for pupils of that community only, religious education should not be compulsory?

The Hon’ble Dr. B. R. Ambedkar: It is left to them. It is left to the community to make it compulsory or not. All that we do is to lay down that that community will not have the right to make it compulsory for children of communities which do not belong to the community which runs the school.

Prof. Shibban Lal Saksena: The way in which you have explained the word “religious instruction” should find a place in the Constitution.

The Hon’ble Dr. B. R. Ambedkar: I think the courts will decide when the matter comes up before them.

The above relevant part of the constitutional debates and the concluding remark of Dr. B. R. Ambedkar give an indication of the minds of the framers of the Constitution. They had seen the distinction between “religious instruction” as mentioned in Clauses (1), (2) & (3) of Article 28 and “study of religions" or “religious education” as a philosophical study…

The word “secularism” used in the preamble of the Constitution is reflected in provisions contained in Articles 25 to 30 and Part IVA added to the Constitution containing Article 51A prescribing fundamental duties of the citizens. It has to be understood on the basis of more than 50 years experience of the working of the Constitution. The complete neutrality towards religion and apathy for all kinds of religious teachings in institutions of the State have not helped in removing mutual misunderstanding and intolerance inter se between sections of people of different religions, faiths and beliefs. ‘Secularism’, therefore, is susceptible to a positive meaning that is developing understanding and respect towards different religions. The essence of secularism is non-discrimination of people by the State on the basis of religious differences. ‘Secularism’ can be practised by adopting a complete neutral approach towards religions or by a positive approach by making one section of religious people to understand and respect religion and faith of another section of people. Based on such mutual understanding and respect for each other’s religious faith, mutual distrust and intolerance can gradually be eliminated.

Study of religions, therefore, in school education cannot be held to be an attempt against the secular philosophy of the Constitution…

Democracy cannot survive and Constitution cannot work unless Indian citizens are not only learned and intelligent, but they are also of moral character and imbibe the inherent virtues of human-being such as truth, love and compassion. Thinkers and philosophers strongly recommend introduction of teaching of religions in education. There may be some difference of opinion between them as to at what stage of education it should be introduced. Whether it should be introduced right from the primary stage, may be a subject of debate and it is not for the Courts but for the educationists and academicians to assist the Government in formulating a sound Educational Policy for primary education India is mostly composed of people, who are followers of one or the other religions or faiths. A very small section comprises of those who are non-believers. They be described as purely humanists and rationalists…

For the reasons given above, we do not find that the National Education Policy 2002 runs counter to the concept of secularism…

We have… found no ground to grant any directions as prayed for in these petitions. These petitions are, therefore, disposed of with the observations made above. We make no orders as to costs.

Justice D. M. Dharmadhikari New Delhi 12th September, 2002.

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Judgment by Justice H. K. Sema:

I had the privilege of reading the draft judgments prepared by my learned brothers Shah, J. and Dharmadhikari, J. I am broadly in agreement with the conclusion reached at by Brother Shah, J. However, I have some reservations in regard to the opinion expressed by him in respect of the role and functions of the Central Advisory Board of Education (CABE) in evolving a national policy on education. Justice Shah was of the view that since CABE is a non-statutory body, its consultation is not necessary…

In my view, side stepping of such an important Advisory Board as CABE on the plea of non-reconstitution of nominated members is not proper. There is yet another reason as to why consultation of the Board is highly essential in issues like relating to the State and Central coordination in evolving a national consensus pertaining to national policy on education which require implementation in all the States, as the education has now been brought to the Concurrent List by the 42nd amendment to the Constitution. This would dispel the lurking suspicion in the minds of the people and also to project the transparency and purity in the decision making process of the Government…

With this view on CABE, I concur with the view taken by Brother Shah, J in all other respects.

Justice H. K. Sema New Delhi September 12, 2002

 
 
 
       
 
 
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