The textbook case

THE SUPREME Court has always claimed to respond to the felt necessities of the times. This has not invariably been the case. Today, judges define what the Constitution is. Jawaharlal Nehru was right when he said that the Constitution has been "kidnapped and purloined" by the judicial process. The judicial process is far from perfect. There are times when the Court has been hopelessly wrong and admitted its mistake. The textbook case was heard quickly, amidst great controversy and with volumes of relevant and irrelevant material. It requires reconsideration. The textbook case raised two fundamental issues.

The first is the issue of secularism that Article 28 specifically prohibits the Government from teaching religious education through its schools or those maintained by it or allowing the compulsory teaching of religion by grant-aided schools. What the Government cannot do directly, it cannot do indirectly through its Ministry or the NCERT (the National Council of Educational Research and Training).

The second is the issue of federalism. Education is a Union and State responsibility. State schools and schools in States are to teach these new curricula, syllabi and textbooks. If the Union launches a new education policy, should the States be consulted? How? Through the NCERT — a private body with a public profile — from whose meeting State representatives walked out? Or through the official medium of consultation — CABE (the Central Advisory Board of Education) — which has existed for this purpose since 1926 — at least 1935 — but not recently been re-constituted? Before the Sarkaria Commission (1988), most States wanted CABE as a permanent mechanism of consultation between the Union and the States. This federal issue is made further significant because Justice Cheema dissented in favour of the essentiality of CABE as a mechanism of federal consultation. On this, the majority judges (Justices M.B. Shah and Dharmadhikari) did not agree.

Now, where has the Court gone wrong? The one obvious area where the Court has gone wrong is not just that it has placed the NCERT in the position of an official body but treated it as a substitute for CABE and federal consultation. This is wholly contrary to its own decision in the NCERT case (1991, 4 SCC 578) in which the Council successfully argued that it was a private body and not state within the meaning of Article 12 of the Constitution and in respect of fundamental rights. How, then, did the Supreme Court ignore its own the NCERT decision of 1991? It does not matter if the 1991 decision was of two judges? Surely, the NCERT knew its defence of 1991. It should have told the Court that it was a private body. Instead, it went along with the Court making the NCERT the official federal basis of all educational change. In fact, the Court said: "There is nothing in either the Constitution of the NCERT or in any Rule, Regulation or Executive Order to suggest that the NCERT is structurally `subordinate' or inferior to any other body in the field." This is amazing. A body declared to be private in 1991 has been declared to co-equal — if not superior — to all in 2002 without the earlier ruling being examined. For this reason alone, this judgment of 2002 is wrong and proceeds on the wrong fundamental assumption.

The textbook case judgment responds to the Court's great and genuine concern about the decline in values in `modern' life. But the Court's answer that some version of religion is the answer is an intuition that cannot be exercised so as to run contrary to the secularism of a multicultural society; and in particular Article 28 of the Constitution. In fact, Justice Shah forcefully declares: "Religion is the foundation for value base(d) survival of human beings in a civilised society." Which religion? What aspects? The much-debated provisions of the Constitution on the Government not preaching or teaching religion specifically interdicts religious education. And — if now — religion is to be the basis of the resurrection of values, how is it to be achieved? Government reports — and more prominently the judgments in this case — give considerable support to Hindu motifs. Justice Shah's judgment in particular refers to an earlier Andhra religious endowment case which treated Hindu concept of dharma as ubiquitous. But, dharma is not a secular but Hindu concept which held together a society to defend concepts of casteism, untouchability, inequality and gender injustice. Can such a central concept be reified out of existence? In the past, the Supreme Court has elaborated Hindu concepts as secular ones. Justice Gajendragadkar's judgment in the Swaminarayan case (1966) which expanded the meaning of `Hindu' to make it meaninglessly wide and Justice Verma's judgment on `Hindutva' (1994) suggesting that it meant `Indianness' have been justly criticised. This judgment goes further to suggest that a reified Hinduism can and should be taught as the basis of India's moral revival? But, will the syllabi teach of an abstract `dharma'? Or will students also be taught of the social horrors which were cloaked by `dharma' and which have been found abhorrent by the Constitution?

In the textbook case under review, the judges support a distinction between `religious education' and `education about religion'. But, if this distinction is to be seriously treated, `education about religion' can only mean to teach both the goodness and the badness of religion. That is not what is intended by either NCERT syllabi, curricula or texts or the Supreme Court judgment. There can be no quarrel with Justice Shah's view that "knowledge, like the sun (should) shine for all". Teaching knowledge and teaching reified religion are two entirely distinct exercises. Ambedkar rightly told the Constituent Assembly that the State cannot teach all religions. The State is not a super theologician for synthesising all faiths.

Nor is it helpful for the Court to rely on either the Teaching Sanskrit case (1994) or the DAV College Minority Education case (1971) on teaching the life of Indian saints. In the textbook case, the answer to the deep anxiety of the judges about the decline of moral values appears to be: revive values through education about religion being taught in schools because religion is a "major source of value generation". This is what the Constitution specifically prohibited the Union and the States from doing.

The problem relating to educational federalism is no less critical. The NCERT was declared a private body in 1992. It now has high constitutional authority. States viewed it otherwise. State Ministers walked out of the crucial curricula meeting. This flawed the entire consultative exercise even if a majority vote of those remaining blessed the NCERT's endeavour. The fact that the S.B. Chavan Committee made similar proposals to Parliament is also of no great significance if we bear in mind that the Supreme Court has struck down many legislations passed by both Houses on grounds of constitutionality. This brings us back to CABE — the consultative machinery for seven decades. It was not constituted. In a field as delicate as this, constituting CABE or its equivalent was absolutely necessary. The failure to do so is the failure of adequate consultation which though not mandated by statute arises from constitutional principles.

The textbook case judgment is a cry from the judicial heart over declining social values. But, the solution blessed by the Court subverts the Constitution's secular basis. To borrow Gandhiji's phrase about the Privy Council, in this case, the Court has committed `egregious blunders'. Without overruling its own earlier decision on NCERT being a private body, it has been accorded the Council a deep significance in 2002. The Court turns to religion as a saviour. The Constitution looks to its secularism. The result: a deep misunderstanding.

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