Critics say 'judicial overreach' after SC bars 3 NCERT officials over textbook row

The Supreme Court’s direction asking governments, both the Centre and those at states, and publicly funded institutions to dissociate three individuals involved in preparing a chapter in an NCERT (National Council of Educational Research and Training) Class 8 social science textbook on 'corruption in the judiciary' has sparked sharp criticism from legal experts and educationists, with the issue also being raised in Parliament on Friday (March 13).

Also read: Should school textbooks be allowed to critically examine institutions like judiciary?

The court had already intervened in the controversy earlier by ordering the recall of the textbook containing the disputed chapter and restraining its further circulation. The NCERT also issued a public apology over the matter. Yet, on Wednesday (March 11), the apex court issued a fresh directive targeting the authors involved in drafting the chapter.

'Either they don't know or it was deliberate'

“At the outset, we have no reason to doubt that Professor Michel Danino, along with Ms (Suparna) Diwakar and Mr Alok Prasanna Kumar either does not have reasonable knowledge about Indian judiciary or they deliberately and knowingly misrepresented the facts in order to project a negative image of the Indian judiciary before students of Class 8 who are at an impressionable age. There is no reason as to why such persons be associated in any manner with the preparation of curriculum or finalisation of textbook for the next generation,” the court said.

“We direct Union, all states, all institutions receiving state funds, to disassociate them from rendering any service which would mean payment to them from public funds. This is subject to them approaching this court for seeking modification after tendering their response,” it added.

Also read: NCERT issues ‘unconditional apology’ for chapter on judicial corruption

Danino, a French-born scholar, has been the chairperson of the curricular area group that develops NCERT’s social science textbooks. Diwakar and Kumar are his associates.

The move has invited allegations of “judicial overreach”.

'Judiciary becomes extremely sensitive'

On Friday, during Zero Hour in the Rajya Sabha, Shiv Sena (Uddhav Balasaheb Thackeray) MP Priyanka Chaturvedi questioned the implications of the court’s order and warned against institutional overreach, arguing that all branches of governance must remain open to scrutiny.

“When corruption charges are levelled against politicians, investigations are conducted, and action is taken. The same happens in police forces, in the bureaucracy, among individual citizens, and in corporations. But the judiciary becomes extremely sensitive when corruption is discussed,” she said.

“Recently, an impeachment motion was brought against a sitting High Court judge after huge amounts of cash, worth many crores, were reportedly found at his residence. The matter is still being discussed in Parliament, and the judge has merely been transferred, with no action taken yet,” the MP added.

Also read: NCERT textbook ban: Judiciary moves fastest when it's the one being judged

“I believe that all three branches of governance must be equal before the law, must remain accountable, and must be open to scrutiny. Any dysfunctionality or supremacy of one over the others will create a problematic situation for the nation. Therefore, through you (the Speaker), I request the law minister to ensure that there is no such judicial dictatorship or judicial overreach that could create problems in the future.”

'A draconian order'

Senior advocate Prashant Bhushan also described the order as “draconian”.

“This kind of drastic order, rather draconian order, should not be passed without hearing them, without giving them notice. So, it was sort of drastic overreach on the part of the court… As I said in my tweets, it is scoring a self-goal because this will further arouse interest in the issue of corruption in the judiciary,” he told The Federal.

In a blog post titled “Can the Supreme Court ‘ban’ a person?”, constitutional lawyer Gautam Bhatia raised similar concerns about the constitutional basis of the order.

He wrote that “the Constitution does not authorise the restriction of fundamental rights through judicial decree” and that “fundamental rights can be restricted only by law, and judicial orders do not constitute ‘law’ for the purposes of the fundamental rights chapter”.

'What law have they broken?'

Like Bhushan, Bhatia argued that “punishment has been visited upon the three individuals without any clarity about what law they have broken, without a charge or a trial, without a hearing, and without a judgment”.

Also read: Who writes NCERT textbooks, and who really controls what goes in them?

“Banning books and banning people is not what constitutional courts are established for, and they form no part of a constitutional court’s remit — no matter how offensive the court may find a particular book, or how odious it may find a particular person. Judicial outrage cannot be a substitute for constitutionalism; to make it so would be to set both the rule of law and constitutionalism adrift without anchor,” Bhatia wrote.

Bhushan said he had read the controversial chapter and did not find anything defamatory or factually incorrect in it.

Aruna Roy case referred to

“The judiciary should not be wading into the issue of what needs to be taught unless there was something very, very gravely wrong with it. When Aruna Roy had filed a petition many years ago regarding the retrograde changes being made in NCERT textbooks, the court had said it cannot interfere and that this is a matter for the executive and experts. What should be taught in schoolbooks should normally be left to experts,” he said.

Legal scholar Faizan Mustafa also referred to the Roy case, but argued that the current controversy reflects deeper problems in the way textbooks are written.

Also read: Modi annoyed over NCERT 'judicial corruption' row: Reports

“Many of us have long argued that textbook writing was being used as a political project, but no one listened. Now, when these writers include remarks about the judiciary, suddenly, there is outrage. In a way, this only exposes how poorly NCERT has handled the rewriting of history and other textbooks. Education should not become a tool to carry forward the ideological agenda of any government. Textbook writing should be ruthlessly objective and independent,” he told The Federal.

'What you do comes back to you'

“Whatever you do ultimately comes back to you. During the Vajpayee government, people like Aruna Roy approached the Supreme Court over these issues, but the court did not pay much attention to the use of textbooks to further a political project… By and large, the Indian judiciary has done a remarkable job. Though there are exceptions as well, and a few unfortunate cases of even corruption may be there by some individual judges, any discussion on such a sensitive subject should be written in a more nuanced way. We should not overgeneralise and paint such a picture in the minds of young children that would bring the judiciary in disrepute,” he added.

Educationist Anita Rampal said the Supreme Court’s intervention had raised important questions but should have gone further in examining the broader textbook development process.

Also read: ‘Heads must roll': SC bans NCERT book over chapter on 'judiciary corruption'

“It's important that the SC has made an intervention and asked some crucial questions — about the process of textbook development, the constitution of the committees and the manner in which approvals have been done. But it seems to have abruptly stopped short, with three names selectively mentioned in the affidavit, focusing singularly on two or three statements about the judiciary. It has not sought answers on who the few were who had approved the books, and how the committee was constituted in the first place. Why this singular focus only on the domain of legal knowledge? Aren't other domains equally critical for the development of textbooks and the development of children?” she asked.

“Moreover, the chapters are not developed only by one or two persons — the draft of this chapter has been discussed by most members of this textbook development committee, and its reviewers. The question is also why the court has not looked at the full process but picked only those mentioned by the deponent, the NCERT director himself,” Rampal added.

A senior professor who has been involved in drafting NCERT textbooks, however, struck a more balanced note.

“There are many problems with the content of the new NCERT textbooks. But these problems should be publicly debated. Judicial ban on textbooks is not a desirable way to settle problems — unless the statements in the textbooks violate the limits of free speech. In fact, what the NCERT text says about the judiciary are statements regularly made by retired judges,” he told The Federal.