Advocates:
K. V. VIJAYAKUMARTARA CHANDRA SHARMA

http://JUDIS.NIC.IN

SUPREME COURT OF INDIA

Page 1 of 2

CASE NO.:

Writ Petition (civil) 98 of 2002

PETITIONER:

Ms. Aruna Roy and others

Vs.

RESPONDENT:

Union of India and others.

DATE OF JUDGMENT: 12/09/2002BENCH:

H.K. SEMA

JUDGMENT:

J U D G M E N T

SEMA, J

I had the privilege of reading the draft judgments

prepared by my learned brothers Shah,J. and Dharmadhikari,J. I am

broadly in agreement with the conclusion reached at by Brother

Shah,J. However, I have some reservations in regard to the opinion

expressed by him in respect of role and functions of the Central

Advisory Board of Education ( CABE ) in evolving a national policy on

education. Justice Shah was of the view that since CABE is a non-

statutory body, its consultation is not necessary.

The view of Justice Shah on the role and functions of

CABE at page 7 of the judgment reads thus:

"In our view, this submission cannot be

accepted. Firstly, it is to be reiterated that CABE is a

non-statutory body constituted by the resolutions from

time to time. It is true that it is functioning since 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 the NCERT is violative of any statutory provision or

rules."

While it is true that the CABE is a non-statutory body but one

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. I am, therefore, of the view that the

importance of the role played by CABE cannot be side 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.

It is now well-settled principle that past practices and

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 brought to our

notice disbanding or discontinuing CABE. The only document, which

has been brought to our notice is the letter dated 12th February,

1997 written by the Deputy Secretary, Cabinet Secretariat, addressed

to the Ministry of Human Resource Development, referring to its letter

dated 2nd January, 1997 and saying that the Prime Minister has felt

that the proposed Board is too unwieldy and desired to know whether

there could be a compact Board. Thereafter, the matter appears to

http://JUDIS.NIC.IN

SUPREME COURT OF INDIA

Page 2 of 2

have not been pursued further.

In my view, side stepping of such an important Advisory Board

as CABE on the plea of non-reconstitution of nominated members is

not proper. There is yet another reason as to why consultation of the

Board is highly essential in issues like relating to the State and

Central coordination in evolving a national consensus pertaining to

national policy on education which require implementation in all the

States, as the education has now been brought to the Concurrent List

by the 42nd amendment to the Constitution. This would dispel the

lurking suspicion in the minds of the people and also to project the

transparency and purity in the decision making process of the

Government.

It is true, whether to continue or to discontinue such Board is

within the realm of the executive authority, but as long as it exists,

consultation with such body, which has been in existence since 1935,

cannot be side-tracked. The