Are You Propagating or Proselityzing? : How & Where Do You Draw The Line? A Landmark Case By The Supreme Court Of India : Aruna Roy vs. Union of India

18 Oct, 2019

ABSTRACT

The Indian Constitution provides the fundamental right of the “3 Ps” of religion to all persons: profess, propagate, and practice. When it comes to propagating religion, where do you draw the line between propagating and proselytizing in this era? Keeping in mind the fact that proselytization is a form of conversion and also the act of inviting conversion, which is not protected by the Indian Constitution as stated in the Stainislaus case¹. In this paper, I will discuss a very important case decided by the Supreme Court of India, Aruna Roy vs. Union of India, where the Hon’ble Court makes a clear-cut distinction by drawing a line between “religious education” and “education about religions” using the marker of secularism as enshrined in the Preamble of the Indian Constitution. This paper will be in the format of a case commentary.

BACKGROUND

The National Council of Educational Research and Training (NCERT) is an autonomous body that deals with educational policies and affairs of the nation. At the time, the political party, Bharatiya Janata Party (BJP) was the ruling government at the Centre. The BJP came up with a curriculum in November 2000 through NCERT, National Curriculum Framework of School Education (NCFSE) which was the third curriculum. It disseminated instructions about common school structure, value education, management, and syllabus framework of schools. One of the salient features and also a core objective of the NCFSE was to implement “not religious education but education about religions, their values, their basics and a comparative study of philosophies of different religions”. The framework stressed the fact to give utmost importance on what and how to impart education of religions. While following the framework, all religions should be treated equally and respected and there should not be any kind of discrimination amongst the religions.

At the same time, the report of the S. B. Chavan Committee had suggested the same about religion be introduced in the educational syllabus from middle schools and continued up to the university level. The report stated religion to be the “most misunderstood and misinterpreted matter”² which needs utmost care when handling it.

The core objective as stated above was one of the sparks that ignited the vehement contentions and the petition was filed as to how the National Curriculum Framework, 2000 violates Article 28. Clause 1 of Article 28 states no educational institution shall indulge in imparting religious instructions or religious education. However, the distinction between the two terms is very similar in sound, “religious education” and “education about religion” was incorrectly interpreted as the line dividing them is thin and blurry. This variance also gave rise to questions on the title of “secularism” given to the State in the Constitution.

Ms. ARUNA ROY v. UNION OF INDIA

CASE NO.: Writ Petition (Civil) 98 of 2002

PETITIONER: Ms. Aruna Roy & Others

RESPONDENT: Union of India & Others

DATE OF JUDGMENT: 12/09/2002

BENCH: M.B. SHAH

FACTS

Public interest litigation (PIL) was filed under Article 32 of the Constitution of India contending mainly that the National Curriculum Framework for School Education (NCFSE) published by the National Council of Educational Research and Training (NCERT) is against the constitutional mandate, anti-secular, and without consultation with Central Advisory Board of Education (CABE) and, therefore, requires to be set aside. Adding to it, CABE is in existence since 1935 and until now CABE was always consulted and reported by the NCFSE before and about publishing NCERT.

The PIL challenged the revision of many textbooks after the publishing of the Curriculum, like the history textbooks in the government high school which was alleged to have a Hindu religion-biased history of the country. To illustrate one, the roots of the Hindu religion trace back to the times of Aryans and holds a belief that the Aryans, who created the concept of Hinduism, are “sons of the soil of Indian land” and have more “legitimate claim” on it. This theory, in some way, suppressed the concepts and beliefs of the “other” religions existing in the nation. There was also a constant characterization of Muslim leaders in the Indian subcontinent to be ruthless and violent making the already existing issue more controversial.

This raised questions in the minds pertaining to the word and nature of “secularism” as enshrined in the Preamble of the Constitution of India.

ISSUES

1. Whether non-consultation with CABE before framing National Curriculum is unjustified and, therefore, it cannot be implemented?
2. Whether the approval of NCERT is required and the autonomy and authority of NCERT in the implementation of documents pertaining to educational matters?
3. Does the introduction of religious education in educational institutions run counter to the concept of ‘secularism’ which should guide the activities of the State in the field of education?
4. Whether the NCFSE pertaining to education for value development violative of Article 28 of the Constitution of India?
5. Whether the introduction of religious education in educational institutions is fully maintained out of State funds?

ARGUMENTS

1. Non-consultation with CABE

The contention was put forth by Mr. C.S. Vaidyanathan, learned senior counsel for the petitioners, that non-contention with CABE about framing a new syllabus or National Curriculum is not justified, so cannot be implemented. CABE, Central Advisory Board of Education, is the central and authoritative body in the matters of education and has always been a crucial part when making a new policy or document for education because of the required expertise it holds and also as coordination between State-Centre. Learned Counsel also mentioned since years before framing such a national curriculum, the CABE is always consulted and, therefore, non-consultation of the CABE by the Government or the NCERT for curriculum framework of school education is against the established principle for an oblique motive.

2. Authority of NCERT

The learned counsel for the respondents submitted that the discussions/workshops were held at various levels before framing the National Curriculum Framework (NCF). They also pointed out that NCERT is an autonomous body established by the Union Government as a vehicle to promote inter alia the uniformity of standards in education. The Memorandum of Association of NCERT, states “the objects of the Council shall be to assist and advise the Ministry of Education and Social Welfare in the implementation of its policies and major programmes in the field of education, particularly school education.” It was submitted that the authority of the NCERT to publish a national curriculum to serve as a model for the States as well as to be a guide for the publication of its books and literature cannot be seriously disputed. There is no statute nor there is any limitation in the Rules or Regulations framed for the working of NCERT, which would require it to seek the approval or concurrence of any other authority before publishing the national curriculum. There is nothing in either the constitution of the NCERT or in any other Rule, Regulation or Executive order to suggest that the NCERT is structurally “subordinate” or inferior to any other body in the field. The CABE upon its reconstitution is also chaired by the Union Minister of Human Resource Development. It also comprises Cabinet Ministers, Ministers of the Ministry, ex-officio members of Commissions, members of Parliament and other persons appointed by the Government.

Learned senior counsel Mr. Vaidyanathan further submitted that the claim of respondents that the NCERT General Council has approved the final document is false and incorrect. On behalf of the respondent, the Union, it has been repeatedly pointed out that NCERT also consists of experts in the field of education as well as ex-officio members. If the constitution of NCERT and CABE is limited to its ex-officio members more or less it would consist of the same members.

3. 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. The National Policy on Education (1986) emphasizes equity and social justice in education to promote the country’s unique socio-cultural identity and to contribute to national cohesion, promoting tolerance, scientific temper and the concerns enshrined in the Indian Constitution. Besides, the curriculum in schools has to develop key qualities like regularity and punctuality, cleanliness, self-control, industriousness, sense of duty, desire to serve, responsibility, enterprise, creativity, sensitivity to greater equality, fraternity, democratic attitude and sense of obligation to environmental protection. And not to be kept aside, a very significant factor, is religion. Today’s generation does not require “religious education” but rather “education of religions”, their basics, values vested in them, and a comparative study of the religions and their philosophy to understand them better in all aspects and dimensions. Education about religions must be handled with extreme care. All steps must be taken in advance to ensure that no personal prejudice or narrow-minded perceptions are allowed to distort the real purpose of this venture and that no rituals, dogmas and superstitions are propagated in the name of education about religions.

The following part “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” was vehemently and only objected to by the petitioners. It is contended that giving education about religions would be violative of Article 28 and also it would offend the basic structure of the Constitution, namely, secularism.

4. Contentions against Sanskrit and other subjects

The learned counsel for the petitioners next contended that if the philosophy of religion spills into teaching religious tenets, it would fall under “religious instructions”. Regarding Sanskrit Language Learned senior counsel Mr. Vaidyanathan further submitted that the Sanskrit language is imposed in an unjustified manner. The learned counsel for the petitioners also raised vehement contentions over Vedic Astrology, Vedic Mathematics, and Hindu Festivals being treated as National Festivals.

5. Violation of Article 14

The learned counsel for the petitioner's next contented NCFSE is violative to Article 14 of the Constitution of India as the National Curriculum suggests categorizing students as “gifted” or otherwise would be specially treated according to “spiritual quotient” or the “intelligence quotient”.

JUDGEMENT

1. In the result, the Court held that non-consultation with CABE cannot be held to be a ground for setting aside the National Curriculum Framework for School Education (NCFSE).

CABE was formed under Resolutions and the Resolutions, thus, state the powers and functions of the CABE. As per the record, CABE has the designated functions to review the progress of education from time to time, 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, to advise regarding coordination between the Central and State Governments/UT Administrations, State Governments, non-governmental agencies, for educational development following the education policy; and 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. The second part of the Resolution states when the body, CABE can be discharged of its functions and the members, their mode of selection and tenure of the office. It is true that for coordination between the State and the Centre in implementing the education policy, CABE played an important role. But this would not mean that before framing such policy by an independent body, namely, NCERT, CABE ought to have been reconstituted and consulted.

Keeping this in view, this submission cannot be accepted. Firstly, it is to be reiterated that CABE is a non-statutory body constituted by the resolutions of the Government of India from time to time. It is indeed functioning since 1935. However, it is constituted by the 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.

Regarding the matter, of whether the NCERT General Council has approved the final document is false and incorrect as alleged by the petitioners, it is to be stated that in democracy, decisions which are taken by the majority are to prevail unless they are contrary to any statutory provisions or rules or are arbitrary. In any case, it is difficult to accept the contention raised by the learned senior counsel Mr. Vaidyanathan that NCERT General Council has not given its approval to NCFSE. Approval depends upon the view of the majority considering democracy.

Hence, the contention from the petitioners that CABE was 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.

2. The court held that the NCF, 2000 is not violative to Article 28 and the submissions against Sanskrit, Vedic Mathematics, and Hindu Festivals being treated as National Festivals stand premature and unjustified.

“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 recognized 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.” ³

In substance, the quoted Article 28 of the Indian Constitution prohibits imparting of religious instructions in any educational institution wholly maintained out of State funds, also stating 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, it also clears out that no person attending such educational institution receiving aid for the State funds be compelled to attend the religious instructions being imparted so. The entire scope of the Article is to prohibit any kind of religious instruction such as worshipping modes of any religion from being imparted in educational institutions. But, in any way, the Article doesn’t mention about the study of religion being a religious instrument should be prohibited under the same or that comparative analysis of philosophies of different religions is a kind of religious study. The study of values and principles with the philosophy of every religion to know them better and compare them distinctly should not be considered a religious study but rather an analytical study of religions.

Regarding the contention, if the philosophy of religion spills into teaching religious tenets, it would fall under “religious instructions”. In the court’s 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. Hence, the court had no hesitation in not referring it to the discussion relied upon by the learned counsel in the Constituent Assembly debates.

For the Sanskrit language being imposed, it has been pointed out that 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. Reasoned by the help of the case Santosh Kumar and others v. Secretary, Ministry of Human Resources Development⁴, wherein this Court has emphasized the importance of Sanskrit study and declared the omission of Sanskrit from the CBSE syllabus as unjustified. The contention regarding Vedic astrology was rejected by clearing the confusion about the curriculum actually “astronomy” which is a scientific study and distinguishable from Vedic astrology. As per the Vedic mathematics allegation, Vedic Mathematics is not a part of the curriculum but rather a suggested teaching aid. While teaching mathematics, it can be used as an available aid to explain effectively according to choice, of course. Hence, it was stated that “Vedic”, in this context, has to be referred to as “a matter of time” and should not be considered as a part of any religion.

And, with the above-cleared rejections of the submissions, as put forth by the side of the petitioners, the petition was rejected.

MY TWO CENTS ABOUT OTHERS' TWO CENTS

Judge, M. B. Shah had elucidated the matter by referring to the S.B. Chavan Committee Report which stated that religion is a ‘most misused and misunderstood concept’ and that ‘the basics of all religions, the values therein, and also a comparative study of religion be introduced in the educational syllabus from middle schools and continued up to university level’.

Many contentions were raised vehemently by the Learned senior counsel of petitioners, Mr. Vaidyanathan was arbitrary or not pertinent to the actual issues for the case in the Court. For instance, the argument against the Sanskrit Language. The Sanskrit Language is not an imposition but rather an option kept open to students to study according to their wishes and choices. It is made an additional option in the secondary stage. The “Vedic” was mistaken as a part of certain religion whereas, in here, this context, “Vedic” should be referred to as a scale of time which is one of the origins of education that can be used at present as aids for a better and effective explanation like Vedic Mathematics. The learned counsel also made a confusing contention regarding the terms, astrology and astronomy. These arguments were premature and arbitrary. Another issue raised by them was Hindu Festivals being treated as National Festivals. But, this argument was rejected at once as an act of falsification because nowhere in the NCF, 2000 it has stated in any way as so. Rather, it talked about organizing joint festivals of all religions, so students can gain a practical and better understanding of different religions and their importance in the best and most harmonious possible way. The court dismissed them on the grounds of being unjustified and others not relevant to the issues as stated in the case.

However, this judgment can be held significant if we look into how M.B. Shah, J. had clearly distinguished between “religious instructions” and “the study of religion” by taking the case of D. A. V. College v. the State of Punjab⁵. He has stated,

“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 the academic study of life and teaching or the philosophy and culture of any great saint of India concerning or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions.”

“Religious instruction” is the teaching of rituals, practices, customs, traditions and modes of worship in religions and “teaching of philosophies of religions” aims at emphasizing the study of essential moral and spiritual thoughts contained in various religions. There is a very thin line dividing between the imparting of “religious instruction” and the “study of religions”. Special care has to be taken of avoiding the possibility of imparting “religious instruction” in the name of the “study of religions”. This interpretation of the sounding similar terms was clear and distinguished between what education is of religion and what education is about the philosophy of religion and gave a new analytical tool as to what could be considered as religious instruction that could violate Article 28 of the Indian Constitution.

The judgment in the Aruna Roy case was severely criticized by Martha Nussbaum, who declared that Justice Manharlal Bhikanlal Shah’s majority opinion is one of the weakest pieces of legal argumentation and ingenuity that has recently emerged from the Supreme Court of India. She stated that considering religion to be the foundation of values which is the survival kit of human beings in society implies that we are pushing ourselves from ethical values towards religious values. She also criticized that the judgment given linked the ultimate goal of the nation with religious values and education.⁶ Although the judge intended to lay the ground differences between religious instruction and religious studies, it somewhere lacked in providing a fructuous discussion about the scope and adequacy of religious instruction. Another author contemplated how the judgment is not a “sharp departure” from the suggestions given by educational ministers and the educational bodies.⁷

Apart from the criticisms received about the petition and the judgment, the case, in the terminal, gave us a new dimension to think about and apply the concept of secularism. It approached intending to understand the complexities of India’s version of secularism and constitutionalism and to also tackle the many inconsistencies and ambiguities that lie therein. Secularism doesn’t only imply “non-discrimination of the people by the state based on religious differences”⁸ or justified to be “Sarwa Dharma Sambhava”, i.e., tolerance of all religions⁹ if quoted from the Yajur Veda, Atharva Veda, and Rig Veda. But, secularism is also a title given to a nation where every religion is recognized and prioritized equally, its philosophy is understood, and the values, basics, and origin is respected by the citizens and the generations of the country. Secularism also means emphasizing that the State guarantees equality on the grounds of religion to all individuals as the State has no religion itself.¹⁰

The perpetual words of Chief Justice Holmes, “the life of law has not been logic, but has been experience”¹¹, as also quoted by the Court in this case, for the purpose that this maxim has a greater ambit of application in interpreting constitutional laws. The term secularism is not only mentioned in the Preamble as its nature but its essence and applications are spread over from Articles 25–30 and also Article 51A of Part IVA of the Constitution. It has various aspects affecting the country with it. So, the application of logic cannot be enough of a solution for a law that binds the citizens into one yet keeps them divided within itself, the religion. We have to look into the working, the progress, and the effects of the law over all these years. Mere neutrality and keeping the State immune to all kinds of religious affairs sounds like a perfect solution but, this is ideal and not practical. So, another way could be giving the law of “secularism” a positive meaning and a positive approach rather than a neutral and immune approach. Positive approach; recognizing, developing, supporting and respecting each other’s and all religions and keeping all of them at par. Mutual understanding and acclimatization about each other’s beliefs and faith is also a dimension of secularism. And, this approach can be succeeded not by logic but by the experience we have gained in the past and the experiences we would gain in the future.

The Supreme Court, in this case, has held that the word “religion” has different shades and an important shade is a duty toward society. The word “secularism” means developing understanding and respect for different religions. Secularism is, thus, susceptible to this positive meaning and is a basic feature of the Constitution.¹²

FOOTNOTES: