By now, the scandal (I would not call it anything but a scandal) of how Dinanath Batras rubbishy books are being sent to all Gujarat schools, is a well known one. For those who are no aware of these, this article, forwarded by Aap Ka Prithvi, reveals all. Yesterday, in another thread posted by Nilim Dutta, he suggested that someone ought to go to court against this action of the State government of Gujarat. I spent much of last night lying awake and wondering how a court petition could be drafted. What could be the legal points on which one might get a ban imposed on such books being circulated? As I see it, the following points would be relevant for drafting a case: (a) Education is a concurrent subject; so the actions of the Gujarat government come within its legislative competence. However, the distribution of the books as additional reading, is not a legislative act, but an administrative one. (b) It would be interesting to know how such a decision was taken. The reasons for doing so would certainly be available on files of the State government. It would be necessary to file an RTI application to obtain a copy of the file notings, particularly to also ascertain what officials thought about this introduction and whether there were any dissenting views. (c) As far as I can see, there is nothing in the Constitution that explicitly prevents such incorrect material from being distributed. Those who do it might rely on Article 25 (1), which guarantees the freedom of conscience and free profession, practice and propagation of religion. However, opponents such as us could rely on the proviso to this clause, which says that such freedom is subject to public order, morality and health. We can also rely on Article 25(2)(a), which says that nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. We could also rely on Article 28(1), which states that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. and Article 28(3), which states that no person attending any educational institution recognised 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. However, if we do so, the Government might rely on Article 28(2), which states that 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. It may be noted that in Gujarat, a significant number of educational institutions have been traditionally run by private trusts, which also receives funding from the State, so this might be a valid argument. We could aim to rely on Article 19 (1) and Article 19(2) of the constitution. Article 19(1)(a) states that all citizens shall have the right (a) to freedom of speech and expression. Artile 19(2) states that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The question is, whether we can go to court seeking a direction to the State to ban the distribution of such books as they are violative of public order, decency and morality. I think we might be able to make out a case, because these books make racist comments. However, I wonder if there could be another, wider approach. Could it be possible for us to seek the ban of such books on the ground that the freedom of speech does not include the freedom to mislead? In this regard, the case law of American courts, interpreting the latitude of the First amendment to the American Constitution (which guarantees the freedom of speech), and the way it has impacted the teaching of creationism, might be useful. It is important to note that Articles 19, 25 and 28 have been patterned on analogous provisions in the American Constitution. What do you think? qz/241048/what-gujarat-govt-is-encouraging-school-children-to-read-is-dismaying/
Posted on: Tue, 29 Jul 2014 04:50:22 +0000
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