# MS. ARUNA ROY v. U.0.l

- **Citation:** [2002] Supp. 2 S.C.R. 266
- **Court:** Supreme Court of India
- **Decided:** 2002-09-12
- **Bench:** M.B. Shah, D.M. Dharmadhikari, H.K. Sema
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ms-aruna-roy-v-u-0-l-18687
- **Pages:** 58

## Headnote

Constitution of India, I950; Articles 2I, 27, 28, J2 and 5JA:
PJL-Publication of National Curriculum Framework for School
C Education 2000(NCFS.E.) by NCE.R.T.--Challenge on grounds of nonconsultation with Central Advisory Board of Education, and as being
unconstitutional and anti-secular-Held unfounded-Hence rejected.
Non-consultation with CABE-Effect of-Held, CABE being a nonD statutory body constituted by the Government in exercise of its executive
fanction, consultation before finalisation of Education Policy is not mandatory--
Besides, N CE.R. T. is a statuto1y body comprising of experts and Members of
Parliament-Thus, formulation of NCFS.E. 2000 without consultation with
CABE is not violative of established principles/statutory provisions/rules.
E
Secularistic democracy-preservation of-Held, NCFS.E. emphasizing
on study of basic tenets of all religions besides assurance by the Central
Government that no personal prejudices or narrow minded preceptions are
allowed to distort the real purpose. Hence, secular features of the Constitution
remained undisturbed/unaffected.
F
Educational Institutions maintained out of State fund-Imparting of
religious instructioi1s-Prohibitions-Scope and ambit of-Held, NCFSE
comprise teaching of religious philosophy and culture particularly for having
value based social life in the society which is also in conformity with
fundamental duty enshrined under Article 5I(A). Thus, NCFS.E. is not
G unconstitutional as being violative of Article 28.
Petitioner filed Public Interest Litigation under Article 32 of the
Constitution of India challenging publication of the National Curriculum
Framework for School Education (NCFSE) by N.C.E.R.T. on the grounds
that there was no consultation with .Central Advisory Board of Education
H (CABE), that it wa~ unconstitutional and it has anti-secular features.
266
MS. ARUNA ROY v. U.0.l.
267
Dismissing the petition, the Court
A
HELD: Per Shah, J. :
I.I. CABE is not constituted under any Act or Rules, hence not a
statutory body. However, it is not disputed that it continuously functioned
since 1935 to 1994. As per Resolution dated 10th April, 1986 issued by B
the Ministry of Human Resources Development (Deptt. of Education),
Government of India, CABE consists of 104 Members including ex-officio
members, members nominated by the Government and members elected
by the Parliament. The Resolution also requires that the Board would meet
at least once a year and there shall not be a gap of more than two years C
between two consecutive meetings of the Board. The tenure of office of
members of the Board other than Ex-officio members was three years
effective from the date of notification. Subsequently, on 19th October,
1990, Government of India passed another Resolution reconstituting
CABE. From these two resolutions, it is apparent that the functions of
CABE are limited. It nowhere mandates that before framing national D
curriculum framework for school education, the Government shall consult
CABE and act as per its advice. Admittedly, CABE for one or the other
reason was not reconstituted since 1994 as neither the Government has
nominated the members nor the Parliament has elected members as
required by the 1990 Resolution. As per the Resolution, the tenure of office E
of the members of the Board other than ex-officio members was only for
three years. Thereafter, no further resolution is passed reconstituting the
CABE. [277-G, H; 278-A, H; 279-A, B; F; 281-E[
1.2. The main function of CABE as per the resolutions is to review F
the progress of education from time to time and to appraise the extent
and manner in which the Education Policy has been implemented by the
Central and State Governments and other concerned agencies and to give
appropriate advice in the matter. It can also advise· the Government
regarding coordination between the Ccntr11l Government and the State
Government for educational development in accordance with the G
Education Policy. Suo moto also, it can a

## Text

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A
MS. ARUNA ROY AND OTHERS
V,
UNION OF INDIA AND OTHERS
SEPTEMBER 12, 2002
B
[M.B. SHAH, D.M. DHARMADHIKARI AND H.K. SEMA, JJ.]
Constitution of India, I950; Articles 2I, 27, 28, J2 and 5JA:
PJL-Publication of National Curriculum Framework for School
C Education 2000(NCFS.E.) by NCE.R.T.--Challenge on grounds of nonconsultation with Central Advisory Board of Education, and as being
unconstitutional and anti-secular-Held unfounded-Hence rejected.
Non-consultation with CABE-Effect of-Held, CABE being a nonD statutory body constituted by the Government in exercise of its executive
fanction, consultation before finalisation of Education Policy is not mandatory--
Besides, N CE.R. T. is a statuto1y body comprising of experts and Members of
Parliament-Thus, formulation of NCFS.E. 2000 without consultation with
CABE is not violative of established principles/statutory provisions/rules.
E
Secularistic democracy-preservation of-Held, NCFS.E. emphasizing
on study of basic tenets of all religions besides assurance by the Central
Government that no personal prejudices or narrow minded preceptions are
allowed to distort the real purpose. Hence, secular features of the Constitution
remained undisturbed/unaffected.
F
Educational Institutions maintained out of State fund-Imparting of
religious instructioi1s-Prohibitions-Scope and ambit of-Held, NCFSE
comprise teaching of religious philosophy and culture particularly for having
value based social life in the society which is also in conformity with
fundamental duty enshrined under Article 5I(A). Thus, NCFS.E. is not
G unconstitutional as being violative of Article 28.
Petitioner filed Public Interest Litigation under Article 32 of the
Constitution of India challenging publication of the National Curriculum
Framework for School Education (NCFSE) by N.C.E.R.T. on the grounds
that there was no consultation with .Central Advisory Board of Education
H (CABE), that it wa~ unconstitutional and it has anti-secular features.
266
MS. ARUNA ROY v. U.0.l.
267
Dismissing the petition, the Court
A
HELD: Per Shah, J. :
I.I. CABE is not constituted under any Act or Rules, hence not a
statutory body. However, it is not disputed that it continuously functioned
since 1935 to 1994. As per Resolution dated 10th April, 1986 issued by B
the Ministry of Human Resources Development (Deptt. of Education),
Government of India, CABE consists of 104 Members including ex-officio
members, members nominated by the Government and members elected
by the Parliament. The Resolution also requires that the Board would meet
at least once a year and there shall not be a gap of more than two years C
between two consecutive meetings of the Board. The tenure of office of
members of the Board other than Ex-officio members was three years
effective from the date of notification. Subsequently, on 19th October,
1990, Government of India passed another Resolution reconstituting
CABE. From these two resolutions, it is apparent that the functions of
CABE are limited. It nowhere mandates that before framing national D
curriculum framework for school education, the Government shall consult
CABE and act as per its advice. Admittedly, CABE for one or the other
reason was not reconstituted since 1994 as neither the Government has
nominated the members nor the Parliament has elected members as
required by the 1990 Resolution. As per the Resolution, the tenure of office E
of the members of the Board other than ex-officio members was only for
three years. Thereafter, no further resolution is passed reconstituting the
CABE. [277-G, H; 278-A, H; 279-A, B; F; 281-E[
1.2. The main function of CABE as per the resolutions is to review F
the progress of education from time to time and to appraise the extent
and manner in which the Education Policy has been implemented by the
Central and State Governments and other concerned agencies and to give
appropriate advice in the matter. It can also advise· the Government
regarding coordination between the Ccntr11l Government and the State
Government for educational development in accordance with the G
Education Policy. Suo moto also, it can advise on any education question.
From the report of the Ministry of Human Resources Development, it is
apparent that CABE is only an advisory body and there are other
institutions including the NCERT which also assist the Government in
formulation and implementation of education policies and programmes. H
Further, there is nothing on record to establish that in past approval of
'·
268
SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.
A CABE was sought before NCFSE was published or implemented. The
preamble of 1990 resolution constituting CABE inter alia takes note of
the fact that it is a matter of importance that Central Government, State
Governments, educationists and teachers should increase their interaction
so that education becomes an instrument for national reconstruction and
social cohesion. This would also indicate that the main object of
B constituting CABE is to have interaction so that imparting of education
is helpful in national reconstruction and social cohesion. 1282-B, C; Fl
1.3. It is true that for coordination between the State and the Centre
in implementing the education policy, CABE had played an important role.
C But this would not mean that before framing such policy by an
independent body; namely, NCERT, CABE ought to have been
reconstituted and consulted. [284-A)
1.4. CABE is a non-statutory body constituted by the resolutions of
the Government of India from time to time though it is functioning since
D 1935. However, it being constituted by exercise of the Executive function
of the Government, it cannot be held that as the CABE is not consulted,
the policy laid down by NCERT is violative of any statutory provision or
rules. 1279-H; 280-A)
2.1. None can dispute that past five decades have witnessed constant
E erosion of the essential social, moral and spiritual values and increase in
cynicism .at all levels. People 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 n°or
F secularism. Bereft of moral values, secular society or democracy may not
survive. S.B. Chavan Committee was appointed by the Parliament to make
suggestions for value based education system and its report was placed
before the Parliament for discussion. As per the report, values are virtues
in an individuai 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
G where there is constant evaporation of social and moral values for getting
property, power or post, there cannot be a 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.
1294-C, D, El
H
2.2. For controlling wild animal instinct in human beings and for
MS. ARUNA ROY v. U.0.1.
269
· having civilized cultural society, it appears that religions have come into A
existence. Religion is the foundation for value based 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. Co-existence, not only with human beings but also B
with all living beings on the earth, and discussed by Saints and leaders all
over the world which is reflected in religions. Such teachings cannot be
objected as it is neither violative of constitutional or legal rights nor it
offends moral values. 1294-E, F, GI
2.3. No one can dispute that truth (satya), righteous conduct C
(dharma), peace (shanti), love (prem) and non-violence (ahinsa) are the
core universal values accepted by all religions. S.B. Chavan Committee
has also pointed out that religion is the most misused and misunderstood
concept. However, the process of making the students acquainted with
basics of all religions, the values inherited therein and also a comparative
study of the philosophy of all religions should begin; students have to be D
made aware that the basic concept behind every religion is common, only
the practices differ. If these recommendations made by the Committee arc
accepted by NCERT and are sought to be implemented by formulating
NCFSE, it cannot be stated that its action is arbitrary or unJ11stified.
(295-A, Bl E
2.4. The word 'religion' should not be mis1111derstood nor contention
could be raised that as it is used in the national policy of education,
secularism would be at peril. On the contrary, in a secularistic democracy
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 p
understanding of duties· towards the Society. Value based education is
likely to help the nation tu iight against all kinds of prevailing fanaticism,
ill-will, violence, dishonesty, corruption, exploitation and drug abuses. let
knowledge, like the sun, shine for all and that 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 G
secularism would not survive.
A.S. Narayana Deekshitu/u v. State of A.P. and Ors. 11996) 9 SCC 548;
Santosh Kumar and Ors. v. Secretary, Ministry of Human Resources
Deve,lopment and Anr., 119941 6 sec 5791 and S.R. Bommai v. Union of H
270
SUPREME COURT REPORTS [2002) SUPP. 2 S C.R.
A India, 119941 3 SCC 1, relied on. 1298-G, H; 299-A, B, C)
2.5. 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 interested
persons. Besides, the NCFSE would also be in consonance with the
B fundamental duties enshrined under Article SIA of the Constitution. May
be that basics of all religions may help in achieving the objects behind
fundamental duties. (295-C, D; 296-C(
2.6. Article 28 prohibits imparting of religious instructions in any
educational institution wholly maintained out of State funds. However, the
C entire emphasis of Article 28 is against imparting religious instruction or
of performing religious worship. There is no prohibition for having study
of religious philosophy and culture, particularly for having value based
social life in a society which is degenerating for power, post or property.
(299-G, H; 300-81
D
DAV College v. State of Punjab, (19711 2 SCC 269, distinguished.
3.t. The provisions of N.C.F.S.E. only enable Sanskrit language to
be taught to those students who wish to study it. Sanskrit is one of the
official languages of India. This Court has emphasized the importance of
E Sanskrit study and declared the omission of Sanskrit from CBSE syllabus
as unjustified. (301-E, Fl
Santosh Kumar and Ors. v. Secretary, Ministry of Human Resources
Development and Anr., (1994( 6 SCC 579(, relied on.
F
3.2. The question that NCFSE runs contrary to Article 14 of the
G
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', 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. (303-A, B, C(
3.3. The challenge to N.C.F.S.E. on the grounds that it includes vedic
astrology, vedic mathematics, ·Hindu festivals being treated as National
festivals and that there has been distortion of version of history does not
deserve any consideration. Hence rejected. (302-F, G, H(
H
Per Dharmadhikari, J. (Supplementing):
MS. AR UNA ROY v. U.0.1.
271
1.1. Secularism is the basic structure of the Constitution. Clause (I) A
of Article 28 prohibits imparting of 'religious instructions' in educational
institutions fully maintained out of State funds. The words "religious
instructions" have been held by this Court as not prohibiting education
of religions dissociated from "tenets, the rituals, observances, ceremonies
and modes of worship ofa particular sect or denomination". The academic B
study of the teaching and the philosophy of any great Saint such as Kabir,
Gurunanak and Mahabir was held to be not prohibited by Article 28(1)
of the Constitution. 1304-H; 305-A, Bl
D.A. V. College v. State of Punjab, (19711 2 SCC 269, relied on.
1.2. Constitution is a permanent document framed by the people C
through their chosen and learned representatives for regulating their social
and political life in free India. The Constitution has been accepted by the
people to govern them for all times to come. The basic structure of the
Constitution is unchangeable and only such amendments to the
Constitution are allowed which do not affect its basic structure and rob it D
of its essential character. The Constitution was framed by its makers
keeping in view the situations and conditions prevailing at the time of its
making; but being a permanent document, it has been conceived in a
manner so as to ::pply to situations and conditions which might arise in
future. The words and expressions used in the Constitution, in that sense,
have no fixed meaning and must _receive interpretation based on experience E
of the people in the course of working of the Constitution. 1313-E, Fl
1.3. The word "secularism" used in the preamble of the Constitution
is reflected in provisions contained in Articles 25 to 30 and Part IV A added
to the Constitution containing Article SIA prescribing fundamental duties
of the citizens. It has to be understood on the basis of more than 50 years F
experience of the working of the Constitution. The complete neutrality
to"ards religion and apathy for all kinds of religious teachings in
institutions of the State have not helpf:d in removing mutual
misunderstanding and intolerance inter se between sections of people of
different religions, faiths and beliefs. 'Secularism', therefore, is susceptible G
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. H
272
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A Based on such mutual understanding and respect for each other" 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. 1313-H; 314-A-DI
1.4. Article 28(1) does not prohibit introduction of study of religions
B in the State educational institutions including those wholly or partly aided
by the States. As a matter of fact, study of religions has been considered
necessary for the unity and integrity of India. Indian society is composed
of people of various religions and faiths. They are expected not only to
live together and tolerate each other, but to live a harmonious life in peace
C and love. Before and after partition in India, religious conflicts and
communal disturbances have impeded the growth of this Nation and its
attempt towards progress. After National Education Policy of 1986, a shift
by the impugned National Education Policy 2002 towards teaching of
religions in the schools to educate children to understand common factors
in all religions, is not a non-secular step. Even before the Government
D decided to inake a shift in the educational policy in that direction, eminent
educationists, thinkers, philosophers and academicians have expressed
thoughts that for all round development of child, study of religions should
start in rudimentary form from school education and should continue up
to the higher education. [315-B, C, DI
E
1.5. A distinction, thus, has been made between imparting "religious
instructions" that is teaching of rituals, observances, customs and
traditions and other non-essential observances or modes of worship in
religions and teaching of philosophies of religions with more emphasis on
study of essential moral and spiritual thoughts contained in various
F religions. There is very thin dividing line between imparting of 'religious
instructions' and 'study of religions'. Special care has to be taken of
avoiding possibility of imparting 'religious instructions' in the name of
'religious education' or 'Study of Religions'. (305-B, C)
1.6. The study of religious pluralism can be articulated in generally
G acceptable way and such attempt has to be made particularly in India
which time and again has suffered due to religious conflicts and communal
disharmony. What is needed in the education is that the children of this
country should acknowledge the vast range and complexity of differences
apparent in the phenomenology of religion while at the same time they
should understand the major streams of religious experience and thought
H as embodying different awarenesses of the one ultimate realitf. A wider
MS. ARUNA ROY v. U.0.1.
273
acceptance of a pluralist view of the religious life of humanity must involve A
developments in the self-understanding of each tradition, a modification
of their claims to unique superiority in the interests of a more universal
conception of the presence of the Real to the human spirit. 1310-A, B, q
Encyclopedia of Religion P.331-333, referred to.
B
1.7. Education in India which is to be governed by secular ethos
contained in its Con.stitution 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 C
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 and bereft of positive approach towards all religions. (309-B, CJ
1.8. How best this religious pluralism to accord with 'secular D
thought' of the country can be achieved by properly selecting the material
for inclusion in the text books for children of different ages and different
stages in the education, is a matter which has to be left to the academicians
and educationists. Their involvement with all dignitaries and with other
experts in related fields is necessary. This exercise has to be undertaken
by the Government for which any direction from the Court is neither E
required and nor can the Court assume such power to encroach on the
fieli; of preparation of an education policy by the State. 1310-G, H; 311-A)
1.9. The expression 'religious instructions' used in Article 28 (1) has
a restricted meaning. It conveys that teaching of customs, ways of
worships, practices or rituals cannot be allowed in educational institutions F
wholly maintained out of States funds. But Article 28(1) cannot be read
as prohibiting study of different religions existing in India and outside India •
. If that prohibition is read with the words "religious instructions" study
of philosophy which is necessarily based on study of religions would be
impermissible. That would amount to denying children a right to G
understand their own religion and religions of others, with whom they are
living in India and with whom they may like to live and interact. Study of
religions, therefore, is no prohibited by the Constitution and the
constitutional provisions should no_t be read so, otherwise the chances of
spiritual growth of human-being, which is considered to be the highest goal
of human existence, would be totally frustrated. Any interpretation of H
274
SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.
A Article 28(1), which negates the fundamental right of a child or a person
to get education of different religions of the country and outside the
country and of his own religion would be destructive of his fundamental
right of receiving information, deriving knowledge and conducting his life
on the basis of philosophy of his liking. 1311-C, D, El
B
Constituent Assembly debate on Article 28, referred to.
2. The purpose of making a survey of various thoughts and
philosophy of different religions and the views of different philosophers,
educationists and thinkers is only to show that the majority of them do
not advocate ban on religious education to children from school to college
C stage. What has been emphasised is that the religious education imparted
to children should be one to make them aware of various thoughts and
philosophies in religions without indoctrinating them and without curbing
their free thinking, right to make choices for conducting their own life
and deciding upon their course of action according to their individual
D inclinations. 1310-D, El
3. 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
E 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
F Government in formulating a sound Education Policy for primary
education. 1317-B, Cl
4. The constitution and functions of NCERT as well as CABE are
not so clearly delineated as to put them in water tight compartments. In
evolving a National Policy on Education and based thereon a curriculum,
G in accordance with long standing practice, it was desirable to consult
CABE although for non-consultation the National Policy and the
Curriculum cannot be set aside by the Court. In a constitutional
democracy, Parliament is supreme and policies have to be framed and
approved by the Parliament. Parliament had constituted CABE and
NCERT and if CABE has any objection to the National Curriculum
H nothing prevented it from expressing its opinion accordingly. It is
MS. ARUNA ROY v. U.0.1.
275
ultimately for the Parliament to take a decision on the National Education A
Policy one way or the other. It is not the province of the Court to decide
on the good or bad points of an Education Policy. The Court's limited
jurisdiction to intervene in implementation ofa policy is only if it is found
to be against any statute or the Constitution. There is nothing in the
Education Policy or the Curriculum which is against the Constitution. B
There is no ground to grant any relief as prayed for by the Petitioners.
The Union of India is directed to consider the matter of filling the
vacancies in the membership of CABE and convening a meeting of CABE
for seeking opinion on the policy and the curriculum.
1320-E, F, G, H; 321-A)
5. All bodies created by executive power of the State, are answerable
to Parliament which is the supreme legislative body with all powers in
suggesting and formulating a National Education Policy. It is open to
Parliament to fill nominations to CABE, re-constitute it or do away with
c
it. The Court can have no jurisdiction in that subject. This Court can
enforce constitutional provisions and laws framed by the Parliament. It D
cannot, however, compel that a particular practice or tradition followed
in framing and implementing the policy, must be adhered to. The Court
has to keep in mind the above limitations on its jurisdiction and power. It
is true that if a policy framed in the field of education or other fields runs
counter to the constitutional provisions or the philosophy behind those E
provisions, this Court must, as part of its constitutional duty, interdict such
policy. (321-B, C, D)
Per Sema, J. (Concurring, but with reservation as regards the view
relating to the role and functions of CABE):
I.I. While it is true that the CABE is a non-statutory body but one F
cannot overlook the fact that it has been in existence since 1935. 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.
Therefore, the importance of the role played by CABE cannot be side G
tracked on the plea that the body is non-statutory, particularly when it
has been playing an important role in the past for evolving a consensus
on the major policy decisions involving national policy on education.
(322-B, C, Df
1.2. It is now well-settled principle that past practices and H
276
SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.
A conventions form a precedent and followed unless decided otherwise. In
the case of CABE, the terms of nominated members is only for three years
but for ex-officio members there is no fixed term of office. This would mean
that the existence of the Board, as such, is in perpetuity. This would also be
clearly indicative of the importance of the Board. No resolution has been
B brought to the notice disbanding or discontinuing CABE. 1322-D, E)
2. it is true that continuance or discontinuance of such Board is
within the realm of the executive authority, but as long as it exists,
consultation with such body cannot be side-tracked. The Union of India
is, therefore, directed to consider the filling up the vacancies of the
C nominated members of CABE and convene a meeting of CABE for seeking
its opinion on National Curriculum Framework for School Education
(NCFSE) as expeditiously as possible and in any case, before the next
academic session. This would not, however, mean that NCFSE 2000
published by NCERT is illegal for non-consultation of CABE. 1323-B, CJ
D
ORIGINAL CIVIL JURISDICTION : Writ Petition (Civil) No. 98 of
2002.
(Under Article 32 of the Constitution of India).
Harish N. Salve, Solicitor General, C.S.Vaidyanathan, Raju
E Ramachandran, Kapil Sibal (N.P.), P.P. Rao, P.S. Misra, Amarendra Sharan,
M.N. Krishnamani Hari Priya, K.V. Vijaykumar, K.C. Kaushik, Siddhartha
Choudhary, R.N. Poddar, C. Radhakrishna, B.V. Bairam Das, Ms. Meenakshi
Sakhardande, Ms Gayatri Goswami, Ms. Aparajitta Singh, K.C. Kaushik,
D.S. Mahra; Ms. Neelam Sharma, Tara Chandra Sharma, Ajay Sharma, Rupesh
Kumar, Rajeev Shanna, Ashok Kr. Pandey, G. Balajee, Chandra Shekhar
F Singh, J.S. Bhasin, Amit Kumar, Amit Tiwary, Vishnu Sharma, Tathagat, H.
G
Vardhan, Samir Ali Khan, Miss Deepa Raj, S. Pani, R.K. Singh, K.V. Mohan,
Sunil Kumar Jain, Vijay Hansaria, M.S. Rahi, J.K. Bhatia, M.P. Vinod, Deepal
Prakash, Nikhil Nayar and C.D. Singh for the appearing parties.
The Judgment of the Court was delivered by
SHAH, J. In this public interest litigation filed under Article 32 of the
Constitution of India, it has been mainly contended that the National
Curriculum Framework for School Education (hereinafter referred to as the
"NCFSE") published by National Council of Educational Research and
H Training (hereinafter referred to as "NCERT") is against the constitutional
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MS. ARUNA ROY v. U.O.l. [SHAH, J.)
277
mandate, anti-secular, and without consultation with Central Advisory Board A
of Education (hereinafter referred to as "CABE") and, therefore, requires to
be set aside. Admittedly, CABE is in existence since 1935 and it is submitted
that uptil now before framing the new NCFSE. the CABE was always
consulted.
At the time of hearing of this matter, it was contended by Mr. C.S. B
Vaidyanathan, learned senior counsel for the petitioners that the issue involved
is one of grave constitutional importance affecting the future of children and
in substance contentions are as under :
1.
The respondents have not sought the approval of the Central
Advisory Board of to the National Curriculum Framework for C
School Education 2000 and without obtaining the approval of
the CABE, the NCFSE cannot be implemented .
2.
The NCFSE and the Syllabus framed thereunder are
unconstitutional as the same are violative of the rubric of
secularism which is part of the basic structure of our Constitution. D
The NCFSE and the Syllabus are also violative of the fundamental
right to education, fundamental right to developm~nt, fundamental
right to information (which have all been read into the right to
life under Article 21) and also Articles 27 and 28 of the
Constitution of India.
Non-Consultation with CABE
We would first deal with the contention that non-consultation with
CABE before framing National Curriculum is unjustified and, therefore, it
cannot be implemented. It is submitted that the CABE is a pivotal and the
highest body in the matters pertaining to education and has always played an
important role in evolving any national document/policy pertaining to
education as it not only has the required expertise but also an effective
mechanism for State-Centre coordination.
It is to be stated that CABE is not constituted under any Act or the
Rules, hence not a statutory body. However, it is not disputed that the said
body continuously functioned since 1935 to 1994 and, therefore, for finding ·
out the functions of the CABE, we would refer to the Resolutions, which are
produced on record, constituting the CABE.
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SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A
As per the Resolution dated I 0th April, 1986 issued by the Ministry of
Human Resource Development (Department of Education), Government of
India, the functions of the CABE are as under :-
"I. The Central Advisory Board of Education was last constituted in
April 1982 and its term expired in September, 1985. In view of the
B
widespread demand throughout the country recently voiced in the
context of the formulation of New Educational Policy for more
effective role of the Central and State Governments and between
State Governments and local bodies and non-governmental agencies;
importance being given to human resource development; and the
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decision to fonnulate the New Education Policy, it has been felt
necessary to redefine the fimctions of CABE.
2. The revised functions of CABE would be:
(a) to review the progress of education ji·om time to time;
(b) to appraise the extent and manner in which the education policy
has been implemented by the Central and State Governments,
and other concerned agencies; and to give appropriate advice in
the matter;
(c) to advise regarding coordination between the Central and State
Governments/UT Administrations, State Governments, nongovernmental agencies, for educational development in
accordance with the education policy; and
(d) to advise, suo moto, or on a reference made to it by the Central
Government or any State Government or by a Union Territory
Administration on any educational question.
3. For the discharge of these functions, the Board may (i) call for
infonnation and comments from any Government institution, any other
organisation or an individual; (ii) appoint committees or groups
comprising members of CABE and/or others as may be necessary;
and (iii) commission through Government or any other agency; studies,
research or reports on any specific issue requiring attention of the
Board or its committees or groups."
The composition of the Board is also provided therein.
As per the aforesaid Resolution, CABE consists of in all I 04 Members.
H Out of them, 64 members are ex-officio members; 32 are nominated by the .
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MS. ARUNA ROY v. U.0.1. [SHAH, .1.)
279
Government and 8 members are elected by Parliament. The quorum provided A
for the meeting of the Board is 2/3rd of the total membership of the Board.
The Resolution also requires that Board will meet at least once a year and
there shall not be a gap of more than two years between two consecutive
meetings of the Board. The tenure of office of members of the Board other
than Ex-officio members was three years effective from the date of notification. B
However, in the first sentence of the Preamble, it is specifically noted that
CABE was constituted in April 1982 and its term expired in September 1985 .
Subsequently, on 19th October, 1990, on the same line, the Government
of India passed the Resolution reconstituting CABE, which inter alia reads
thus:
"The Central Advisory Board of Education (CABE) is the highest
advisory body to advise the Central and State Governments in the
field of Education. In the past, important decisions have been taken
on the advise of CABE and it has provided a forum for arriving at
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a consensus on issues relating to educational and cultural development. D
CABE has a particularly important role to play at the present juncture
in view of the decision of the Government to appoint a Committee
·under the Chairpersonship of Acharya Ramamurti to review the
National Policy on Education 1986 and also in view of the significant
socio-economic and socio-cultural developments taking place in the
country. It is a matter of importance that the Central and State E
Governments and educationists and teachers, should increase their
interaction so that education becomes an instrument for national
reconstruction and social cohesion."
The remaining part, providing for functions and mode of its discharge, F
remains the same, as stated in the earlier resolution.
From the aforesaid two resolutions, which are produced on record, it is
apparent that the functions of the CABE are limited. It nowhere mandates
that before framing national curriculum framework for school education, the
Government shall consult the CABE and act as per its advice. However, it is G
contended that since years before framing such national curriculum, the CABE
is always consulted and, therefore, non-consultation of the CABE by the
Government or the NCERT is against the established principle for oblique
motive.
Jn our view, this submission cannot be accepted. Firstly, it is to be H
280
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A reiterated that CABE is a non-statutory body constituted by the resolutions of
the Government of India from time to time. It is true that it is functioning
since I 935. However, it being constituted by exercise of the Executive function
of the Government, it cannot be held that as the CABE is not consulted, the
policy laid down by the NCERT is violative of any statutory provision or
rules.
B
It is further submitted that the CABE is in existence today as is evidenced
by the fact that the Rajya Sabha website, in the list of bodies in which its
nominees are present, mentions the CABE even till date and the issue regarding
approval of the CABE has been raised by Members of Parliament and others
C in July, 2001, i.e. prior to the finalisation of the NCFSE. Despite the same
the Government failed to r.econstitute the body and it now cannot state that
it hij5 not reconstituted the body as the present petition is sub-judice before
this Court. The Union of India having failed to comply with its duty to fill
in the vacancies cannot now be permitted to take advantage of its own wrong
and be heard to say that the approval of the CA BE was not sought as it has
D not yet been reconstituted. It is further submitted that the Programme of
Action 1992 (POA) states that "CABE is the historic forum for forging a
national consensus on educational issues". The POA reviewed the National
Policy on Education 1986 (NPE' 86) and made certain minor modifications
therein. The said programme of action further states as under:
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"23.7.2. The Central Advisory Board of Education (CABE) has emerged
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·as a very 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. The CABE would be expected to play a
meaningfu/. and important role in the implementation of the
NPE.
23.7.3. The CABE would have to evolve appropriate mechanisms and
processes to discharge its tasks of overseeing and reviewing
the implementation of the NPE. It may have to devise
appropriate structures within its system and also seek the
support of professional organizations and autonomous bodies
in discharging its role. The CABE may consider the modalities
it would adopt for its role in implementing the NPEIPOA. "
It is also pointed out that the Report of the Ministry of Human Resource
H Development of 1990-92 on the Development of Education in India also
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MS. ARUNA ROYv. U.0.1. [SHAH, J.)
281
notes the importance of the CABE. The relevant extract is as follows:
A·
"1.12.
Actions related to education at the national level including
planning and policy-making are guided and coordinated by the
Central Advisory Board of Education (CABE), the members
of which include Ministers of Education of all States and Union
Territories and leading educationists of the country. A few B
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 organizations such as the National C
Institute of Educational Planning and Administration, the
National Council of Educational Research and Training and
the University Grants Commission."
It is further contended that due to the presence of education in the
Concurrent List, the issue relating to State-Centre coordination must not be D
lost sight of, in evolving national consensus on any issue pertaining to
education which requires implementation in all the States. The NPE'86 also
refers to the 42nd Amendment to the Constitution whereby education was
brought to the Concurrent List and talks of a meaningful partnership between
State and Centre in this regard.
Admittedly, CABE for one or other reason was not reconstituted since
1994 as the Government has not nominated the members nor the Parliament
E
has elected members as required by 1990 resolution. As per the 1990
Resolution, the tenure of office of the members of the Board other than exofficio members was only for three years. Thereafter, no further Resolution F
is passed reconstituting the CABE. It is true that if we read the Resolution
as it is, it may mean that for ex-officio members tenure is not limited. However,
why it is not reconstituted by the Government since 1994 cannot be dec·ided
in this petition. Respondent has brought on record one letter dated 12th
February, 1997 written by Deputy Secretary, Government of India, pertaining
to reconstitution of CABE and nomination thereto. The letter, inter-alia, states G
that the Prime Minister has felt that the proposed Board is too unwieldy and
he desired to know whether there could be a compact Board and that the
Department of Education was accordingly requested to examine the proposal.
Therefore, for one or other reason, it is apparent that CA BE was not
reconstituted since 1994.
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SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A
The learned counsel for respondent also submitted that the discussions/
workshops were held at various levels before framing the National Curriculum
Framework (NCF).