The issues at stake

The Supreme Court judgment lifting the interim stay order on the implementation of the NCFSE underlines the necessity of exercising caution while imparting education about religion.

THE controversy over the National Curriculum Framework for School Education (NCFSE) of the National Council of Educational Research and Training (NCERT) took a major turn when a three-Judge Bench of the Supreme Court lifted on September 12 an interim stay on the implementation of the curriculum framework. In separate but concurring judgments, Justices M.B. Shah, D.M. Dharmadhikari and H.K. Sema ruled that they had not found in the educational policy or the curriculum anything that was against the Constitution.With the much-awaited judgment dismissed a public interest petition filed by activist Aruna Roy, educationist Meena Krishna Tyabji and journalist B.G. Verghese on February 15. The petition contended that the NCFSE was anti-secular and against the constitutional mandate and that the Central Advisory Board of Education (CABE) had not been consulted before taking a decision to implement it. The petitioners alleged that the NCFSE and the syllabi framed subsequently were unconstitutional as they violated the fundamental rights to education, development and information and also Articles 27 and 28 of the Constitution.

The petitioners argued that the CABE was a pivotal body in matters pertaining to education. It had always played an important role in evolving any national document or policy on education, they contended, as it not only had the required expertise but also was an effective mechanism for coordinationbetween the centre and the States. However, Justice Shah delivering the main judgment, pointed out that the CABE was not a statutory body. Justice D.M. Dharmadhikari observed that although it was desirable to consult the CABE in evolving a national policy on education and a curriculum based on it, the National Policy and the Curriculum could not be set aside by the court only because the CABE had not been consulted. Concurringwith Justice Shah, Justice Dharmadhikari ruled that Parliament had to take the final decision on the National Educational Policy. Justice Dharmadhikari said: ``It is not the province of the court to decide on the good or bad points of an educational policy. The court's limited jurisdiction to intervene in the implementation of a policy is only if it is found to be against any statute or the Constitution. We have not found anything in the educational policy or the curriculum which is against the Constitution.''

The CABE was officially constituted in April 1982 (though it has been functioning since 1935) and its term expired in 1985. On October 19, 1990 it was reconstituted by the government through a resolution which held that the CABE was the highest body to advise the Central and State governments in the matter of education. The resolution stated that in the past, important decisions had been taken on the advice of the CABE and it had provided a forum for arriving at a consensus on issues relating to educational and cultural development. However, Justice Shah observed that it was not mandatory that before the framing of the NCFSE, the government should consult the CABE and act as per its advice.

Highlighting the importance of the CABE, the petitioners had contended that as education was in the Concurrent List, State- Centre coordination must not be lost sight of while evolving a national consensus on any issue pertaining to education that was to be implemented by all States. Dismissing this contention, Justice Shah ruled that the CABE was not reconstituted after 1994 and that there was nothing on record to establish that the approval of the CABE had been sought before an NCFSE was published or implemented in the past. Although the petitioners contended that the NCF, 1988, was approved by the CABE, Justice Shah ruled that the resolution reconstituting the CABE in 1990 did not indicate the requirement for such a consultation. In fact, the notification referred to the role the CABE had in reviewing the progress of education, the implementation of educational policies and coordination between the Centre and the States. Although the Union of India and the National Council of Educational Research and Training (NCERT), two of the respondents, stated in their counter-affidavits that there was no legal requirement to consult the CABE, they had not denied the fact that it had approved the NCF, 1988.

It is significant that the judgments have focussed on the resolution reconstituting the CABE in 1990. In the period 1990-92, the report of the Ministry of Human Resource Development on the Development of Education in India also noted the importance of the CABE. The report quoted by the petitioners, noted: ``All actions related to education at the national level, including planning and policy-making are guided and coordinated by the CABE, the members of which include Ministers of Education of all States and Union Territories and leading educationists of the country. A few national-level institutions specialising in particular aspects of education assist and advise the Central and State governments in the formulation and implementation of policies and programmes in their respective areas. Special mention may be made in this regard of organisations such as the National Institute of Educational Planning and Administration, the NCERT and the University Grants Commission.'' This extract underscores the importance of the CABE, especially in matters of education policy and planning.

However, given the overall significance of the NCFSE, the court did not consider any of the evidence produced about the CABE. Yet, surprisingly, the main judgment states: ``It is true that for coordination between the State and the Centre in implementing the education policy, CABE had played an important role. But this would not mean that before framing such a policy by an independent body, namely, NCERT, CABE ought to have been reconstituted and consulted.

Justice Sema differed slightly with the other two Judges on the issue of the role and functions of the CABE. While broadly agreeing with the conclusions arrived at in the main judgment, delivered by Justice Shah, about the relevance and legality of the non-constitution of the CABE, he observed that one could not overlook the fact that it(CABE had been in existence since 1935. He noted: ``It has also been accepted as an effective instrument of meaningful partnership between the States and the Centre, particularly at evolving a consensus on the major policy issues in the field of human resource development.''

Justice Sema ruled that the importance of the role played by the CABE could not be sidetracked on the plea that it was non-statutory. The fact that there was no term for the ex-officio members meant that it was a permanent body and indicated its importance. He pointed out that no resolution had been brought in for the disbanding or discontinuation of the CABE. Justice Sema observed: ``Sidestepping of such an important advisory board as CABE on the plea of non-reconstitution of nominated members is not proper.highly" He directed the Central government to consider filling up vacancies of the nominated members of the CABE and to convene a meeting of the board in order to seek its opinion on the NCFSE quickly.

Another issue raised by the petitioners was that the section on education for value development in the NCFSE was violative of Article 28 of the Constitution. The NCFSE had drawn attention to religion and emphasised it as a major source of value generation.