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The Supreme Court’s order in ‘In Re: Social Science Textbook for Grade-8 (Part-2) Published By NCERT and Ancillary Issues’, begins with a reverent invocation of constitutional design – the three pillars, namely, the Legislature, Executive and Judiciary, operating with autonomy while functioning “in concert,” to preserve democracy.

The Constitution does not describe three co-equal pillars. It establishes a parliamentary democracy where the Executive is drawn from and accountable to the Legislature – they are not separate pillars in the American separation-of-powers’ sense. The judiciary is independent, but the framers were deliberate about not creating a fully tripartite system. The autonomy of the three pillars is, in practice, qualified. By positioning the judiciary as a co-guardian of democracy alongside elected branches, the Court implicitly claims that protecting it from criticism serves the constitutional order.

The order’s opening poses as reasoning from first principles, but by asserting it, it intends to establish an emotional register that primes the reader to receive what follows uncritically.

Having set this tone, the order then shifts to its substantive concern. It shares its anxiety about the “pedagogical suitability” of the textbook’s framing of the issue of corruption in judiciary. The implicit argument here is that even if the content of the textbook is factually defensible, the manner and context in which it is presented to students shapes how they form foundational legal attitudes.

The Court is essentially invoking an in loco parentis logic, to restrict what students may learn about it. It conflates difficulty with unsuitability. Uncomfortable institutional truths are arguably more pedagogically valuable in professional education, because legal practitioners will inevitably encounter them in practice.

When the Court is concerned about the chapter’s “impact on the institutional standing of the judiciary as a whole”, its vagueness helps it cover almost any critical content, and protect it from scrutiny.

The order then says the Court is “reluctant to reproduce the full contents” of the chapter, but asserts that it makes “prominent reference to hundreds of complaints” against the judiciary, “clearly indicating, as if no action was taken”, and picks “a few words” from a former Chief Justice to suggest the judiciary has itself acknowledged “lack of transparency, accountability and institutional corruption.” That factual dispute – what exactly the chapter said, how it used the CJI’s words, whether it was indeed “as if no action was taken” – is precisely the kind of contestable question that normally demands careful evidentiary handling. Instead, the Court proceeds on tone and inference.

The order’s internal contradictions become starkest when it turns to the question of democratic values. The Court pays tribute to dissent, deliberation and rigorous discourse as constituting the very vitality of a living democracy and as essential instruments of institutional accountability. Yet, in a display of paternalistic attitude, it argues that it is fundamentally improper to expose young minds to a biased narrative that may engender permanent misconceptions at an age when they lack the perspicacity to appreciate the manifold and onerous responsibilities that are discharged by the judiciary on a day-to-day basis.

Embedding decontextualised text within a nationwide middle school curriculum, according to the Court, bypasses the safeguards of balanced education, thus risking systemic erosion of institutional faith in the minds of students, the teachers, parents, society at large, and even the next generation. If “safeguards of balanced education” exist and the chapter violated them, the Court was – in a contempt proceeding – effectively arrogating to itself the role of curriculum regulator.

What the order does provide, however, is a clue to what the Court thinks “balanced” would have looked like. It faults the chapter for “wash[ing] off with one stroke of the pen” the “illustrious history” of the Supreme Court, high courts and district courts, and for omitting “substantive contributions” of these institutions towards preserving democracy. It says the text fails to acknowledge the judiciary’s “imperative role” in upholding “Constitutional Morality and the Basic Structure Doctrine”, described as the “lifeblood” of citizens’ public existence. It further complains that the book does not delve into “transformative initiatives” pioneered by the Court to overhaul legal aid and access to justice.

This is an institutional demand for a particular form of narrative – one where critique must be accompanied by an extended recital of judicial greatness and achievement. An institution defining the terms on which it may be taught to children is not a safeguard of balanced education – it is precisely the opposite.

The Court then converts the failure to achieve “balance” into a criminal jeopardy. More troublingly, the Court converts this newly announced notion of “balanced education” and the failure to ensure it into a potential criminal wrong. It holds that such “misconduct” would fall within the definition of “criminal contempt” under Section 2(c) of the Contempt of Courts Act, 1971, because – if proved deliberate – it would “imped[e] the dignity of the institution”, “interfer[e] with the administration of justice”, and “scandaliz[e]” the institution. A curriculum dispute is thus recast as an attack on the administration of justice itself.

The show-cause notice asked the NCERT Director and the secretary of School Education why action under “the Contempt of Courts Act” or “any other provisions of penal laws” should not be taken against them. The first part – the Contempt of Courts Act – is at least a defined statute with its own safeguards, including defences built around fair criticism. “Any other provisions of penal laws” is something else entirely. It functions as an unbounded warning: the noticees are put on alert that their exposure is deliberately left open-ended, and the wider bureaucracy is signalled that even curriculum-making can attract penal jeopardy when it touches the judiciary’s image.

It is not clear whether the Court implies – by use of the term “any other provisions of penal law” – that it won’t hesitate to invoke Section 152 of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the colonial-era sedition law (Section 124A of the Indian Penal Code) by construing the textbook reference as an attack on the nation’s sovereignty. Ironically, the provision has been kept in abeyance and is under challenge before the very Bench which issued the order in the textbook case (S.G. Vombatkere v Union of India). The power of the Court to punish for contempt of itself is part of sovereign power. Articles 129 and 215 of the Constitution recognise the existence of such power in the Supreme Court and the High Courts. The Contempt of Courts Act, 1971 regulates the powers of the courts to punish for their contempt.

The Court’s own directions sharpen the chilling effect further. It imposes “a complete blanket ban” on any further publication – print or digital– of the book and warns that any attempt to “circumvent” the order through electronic media or “alternative titles” containing the same contents will be treated as “direct interference”, “willful breach” and defiance.

The irony is complete: the same order that praises rigorous discourse as democracy’s lifeblood also declares that “uninhibited criticism” in a school chapter – combined with an inadequate quota of praise for the institution of the judiciary – can amount to criminal contempt with “everlasting impact” on judicial autonomy. The judiciary’s autonomy is quietly transformed from decisional independence (freedom from improper influence in adjudication) into reputational insulation (freedom from being discussed in ways it finds unacceptable), and then protected through coercive suppression.

If the worry is truly that schoolchildren should not be taught a one-sided story, the answer is more speech aimed at better pedagogy. The Court’s language about “balanced education” would have carried greater credibility had it been tethered to the actual curriculum framework and educational law. In that sense, the NCERT controversy is about what the judiciary, when faced with criticism of itself, believes it is entitled to do. Judicial reputation, which helps to secure compliance with the Court’s decisions, however, is earned by the Judges as they interact with different sections of the society. A non-adversarial approach to restore judicial reputation, therefore, would have enhanced the prestige of the Higher Judiciary.

© The Wire