REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6015-6027/2011
State of Tamil Nadu & Ors. .....
Appellants
Versus
K. Shyam Sunder & Ors. .....Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the judgment and
order dated 18.7.2011 of the High Court of Judicature at Madras in
Writ Petition Nos.12882, 12890, 13019, 13037, 13038, 13227, 13293,
13296, 13345, 13381, 13390, 13547 of 2011 and W.P.(M.D.)
No.6143/2011 whereby the High Court has struck down Section 3 of
The Tamil Nadu Uniform System of School Education (Amendment)
Act, 2011 (hereinafter called the Amendment Act 2011) and issued
directions to the State Authorities to implement the provisions of The
Tamil Nadu Uniform System of School Education Act, 2010
(hereinafter called the Act 2010), i.e. to implement the common
syllabus, distribute the textbooks printed under the uniform system of
education and commence the classes on or before 22.7.2011. The
Contempt Petitions have been filed for non-implementing the
directions given by this Court vide order dated 14.6.2011.
2. F
ACTS:
A. In the State of Tamil Nadu, there had been different Boards
imparting basic education to students upto 10th standard,
namely, State Board, Matriculation Board, Oriental Board and
Anglo-Indian Board. Each Board had its own syllabus and
prescribed different types of textbooks. In order to remove
disparity in standard of education under different Boards, the
State Government appointed a Committee for suggesting a
uniform system of school education. The said Committee
submitted its report on 4.7.2007. Then another Committee was
appointed to implement suggestions/recommendations made by
the said Committee.
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B. During the intervening period, The Right of Children to Free
and Compulsory Education Act, 2009 (hereinafter called the Act
2009), enacted by the Parliament, came into force with effect
from 1.4.2010 providing for free and compulsory education to
every child of the age of 6 to 14 years in a neighbourhood
school till completion of elementary education i.e. upto 8th
standard. The Act 2009 provided that curriculum and the
evaluation procedure would be laid down by an Academic
Authority to be specified by the appropriate State Government,
by issuing a notification. The said Academic Authority would
lay down curriculum and the evaluation procedure taking into
consideration various factors mentioned under Section 29 of the
Act 2009. Section 34 of the Act 2009 also provided for the
constitution of a State Advisory Council consisting of maximum
15 members. The members would be appointed from amongst
persons having knowledge and practical experience in the field
of elementary education and child development. The State
Advisory Council would advise the State Government on
implementation of the provisions of the Act 2009 in an effective
manner.
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C. The Cabinet of the State of Tamil Nadu took a decision on
29.8.2009 that it will implement the uniform system of school
education in all schools in the State, form a Common Board by
integrating the existing four Boards, and will introduce
textbooks providing for the uniform syllabus in Standards I and
VI in the academic year 2010-11 and in Standards II to V and
VII to X in the academic year 2011-12. In order to give effect
to the said Cabinet decision, steps were taken on administrative
level and thus, the Tamil Nadu Uniform System of School
Education Ordinance, 2009 was issued on 27.11.2009 which
was published in the official Gazette on 30.11.2009. The
Ordinance was subsequently converted into the Act 2010 on
1.2.2010. The Act 2010 provided for the State Common Board
of School Education (hereinafter called the Board); imposition
of penalties for wilful contravention of the provisions of the Act
or the Rules made thereunder (Section 11); offences by
companies in the same regard (Section 12); and it also enabled
the State Government to issue directions on policy matters to
the Board from time to time which would be binding on the
Board (Section 14).
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D. Section 3 of the Act 2010 provided that the Act would
commence:
(a) in Standards I & VI from the academic year 2010-11; and
(b) in Standards II to V and VII to X from the academic year 2011-
12.
Sub-section(2) thereof required every school in the State to follow the
norms fixed by the Board for giving instruction in each subject and
follow the norms for conducting examination as may be specified by
the Board. The Board approved the curriculum and textbooks for
Standards I and VI on 22.3.2010 and the books were printed in view
of the consequential order dated 31.3.2010 by the Tamil Nadu
Textbook Corporation.
E. As many as 14 writ petitions were filed in the High Court of
Madras challenging the validity of various provisions of the Act
2010. A Division Bench of the High Court vide judgment and
order dated 30.4.2010 held that the provisions of Sections 11,
12 and 14 were unconstitutional and struck down the same
while the Court issued elaborate directions for implementation
of the common syllabus and the textbooks for Standards I and
VI by the academic year 2010-11; and for all other Standards by
the academic year 2011-12 or until the State makes the norms
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and the syllabus and prepares the textbooks in advance for the
same. Further directions were issued by the Court to the State
Government to bring the provisions of the Act 2010 in
consonance with the Act 2009 and notify the Academic
Authority and the State Advisory Council under the Act 2009.
The State was also directed to indicate approved textbooks from
which private unaided schools could choose suitable for their
schools. The Court further directed the Government to amend
the Act to say that the common/uniform syllabus was restricted
to five curricular subjects, namely, English, Tamil,
Mathematics, Science and Social Science which the schools
were bound to follow, but not in respect of the co-curricular
subjects. The aforesaid judgment was duly approved by this
Court vide order dated 10.9.2010 while dismissing large number
of SLPs filed against the same by a speaking order.
F. In order to implement the Act 2010 and the judgment of the
High Court duly approved by this Court, the State Authorities
referred the enumerated components of the curriculum in
respect of Classes II to V and VII to X to an Expert Committee
for its opinion. The curriculum and syllabus prepared for
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uniform system of school education as well as the textbooks for
Classes II to V and VII to X for uniform system of school
education in Government schools and Government aided
schools were approved by the Board.
G. However, there was a change of State Government following
the general elections of the State Assembly, on 16.5.2011. After
completing the formalities, the Government amended the Act
2010 by the Amendment Act 2011, by which it substituted
Section 3 by a new Section providing that the schools would
follow the common syllabus as may be specified by the Board
for each subject in Standards I to X from such academic year as
may be notified by the Government in the official Gazette. The
Government may specify different academic years for different
Standards. The amendment also omitted Sections 11, 12 and
14 from the Act 2010 since those Sections had been struck
down by the High Court as unconstitutional.
H. New academic session was to commence on 1.6.2011 and the
Amendment Act 2011 came into force on 7.6.2011. A large
number of writ petitions were filed challenging the said
amendment. A Division Bench of the High Court vide order
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dated 10.6.2011 stayed the operation of the Amendment Act
2011, but gave liberty to the State Government to conduct a
detailed study of the common syllabus and common textbooks
and further clarified that the State Government would be
entitled to add, modify, substitute or alter any chapter,
paragraph or portion of the textbooks etc. and further permitting
the managements of private schools to submit their list of books
for approval to the Government.
I. The aforesaid interim order passed by the High Court on
10.6.2011 was challenged before this Court and all those
matters stood disposed of vide judgment and order dated
14.6.2011 by which this Court modified the said interim order
inter-alia, directing constitution of a committee of experts,
which the State Government had already undertaken to appoint,
to examine ways and means for implementing the uniform
education system, common syllabus, and the textbooks which
were to be provided for Standards II to V and VII to X under the
Act 2010. It requested the High Court to determine if such
textbooks and the amended syllabus would be applicable to
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Standards II to V and VII to X keeping in view the provisions
of the amended Act.
J. In pursuance of the said order, an Expert Committee was
constituted and after having several meetings, a joint report was
submitted to the High Court. The High Court after considering
the said report, vide judgment and order dated 18.7.2011, found
fault with the report of the Expert Committee and struck down
Section 3 of Amendment Act 2011 with a direction that the
State shall distribute the textbooks printed under the uniform
system of education to enable the teachers to commence classes,
and complete distribution of textbooks on or before 22.7.2011.
Hence, these appeals.
RIVAL SUBMISSSIONS:
3. Shri P.P. Rao, Shri C.A. Sundaram, Dr. Rajeev Dhavan, Dr.
Abhishek M. Singhvi, Sr. Advocates, Shri A. Navaneetha Krishnan,
learned Advocate General and Shri Guru Krishna Kumar, learned
Additional Advocate General for the State of Tamil Nadu, appearing
for the appellants, have submitted that the High Court vide its earlier
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judgment dated 30.4.2010 had issued directions to the State
Government to amend the Act 2010 as certain provisions thereof had to
be brought in conformity with the Act 2009 and the State had to
constitute the Board and designate the Academic Authority and the
State Advisory Council. In view thereof, it was necessary to bring the
Amendment Act 2011. Thus, basically it was in consonance and in
conformity with the judgment dated 30.4.2010 which has duly been
approved by this Court. The High Court in its earlier judgment itself
gave liberty to the State to implement the common syllabus and
distribute text books under the Act 2010 from academic year 2011-12
or with any future date after the norms were made known by the State
Authorities so far as the students of Standards II to V and VII to X are
concerned. Therefore, in view of the same, the High Court committed
an error holding that the Amendment Act 2011 tantamounts to
repealing the Act 2010. The High Court itself has accepted the settled
legal proposition that the question of malafide or colourable exercise of
power cannot be alleged against the legislature, but still it recorded the
finding that the Amendment Act 2011 was a product of arbitrary
exercise of power. The authorities had to ensure compliance with the
National Curriculum Framework 2005 (hereinafter called NCF 2005)
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prepared by the National Council of Educational Research and
Training (hereinafter called NCERT), which had laid down a large
number of guidelines for preparing the syllabus and curriculum for the
children. The Government of India issued Notification dated
31.3.2010, published in the Official Gazette of India on 5.4.2010,
recognizing the NCERT as the Academic Authority to lay down the
curriculum and evaluation procedure for elementary education and to
develop a framework on national curriculum. In consequence thereof, a
Government Order dated 31.5.2010 was also issued by the Ministry of
Human Resources Development to the effect that in view of the
statutory provisions of the Act 2009, which provided that the Central
Government shall develop a framework on national curriculum with
the help of Academic Authority specified under Section 29 thereof, the
NCF 2005 would be the NCF till such time as the Central Government
requires to develop a new framework. After the order of this Court
dated 14.6.2011, the Expert Committee appointed by the State had
gone through the syllabus and the text books already printed and after
having various meetings, came to the conclusion that the same required
thorough revision and therefore, submitted a report that it was not
possible to implement the Act 2010 in the academic year 2011-12.
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The Advocate General of Tamil Nadu had given
assurance to the High Court that under all circumstances the Act 2010
will be implemented in the next academic year, i.e. 2012-13. However,
the Court did not consider the same at all. It falls within the
exclusive domain of the legislature/ Government as to from which date
it would enforce a Statute. The court cannot even issue a mandamus to
the legislature to bring a particular Act into force. Therefore, the
question of striking down the Amendment Act 2011 on the ground that
implementation of the Act 2010 to be deferred indefinitely is not in
accordance with the settled legal propositions. The State had to appoint
various authorities and notify the same as required under various
statutes. Once the provision stands amended and the amending
provisions are struck down by the Court, the obliterated statutory
provisions would not revive automatically unless the provisions of the
amending statutes is held to be invalid for want of legislative
competence. The appeals deserve to be allowed and the judgment and
order of the High Court impugned are liable to be set aside.
4. Per contra, Shri T.R. Andhyarujina, Shri Basava Prabhu S.
Patil, Shri R. Viduthalai, Shri Dhruv Mehta, Shri M.N. Krishnamani
and Shri Ravi Verma Kumar, Sr. Advocates and Shri Prashant
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Bhushan and Shri N.G.R. Prasad, Advocates appearing for the
respondents have submitted that the Amendment Act is a political fall
out due to change of Government. The new Government was sworn in
on 16.5.2011. The Cabinet on 22.5.2011 decided not to implement the
uniform education system which was purely a political decision as
there was no material before the Cabinet on the basis of which it could
be decided that implementation of the Act 2010 was not possible. The
academic session which had to start on 1.6.2011 was postponed
extending the summer vacation upto 15.6.2011 vide order dated
25.5.2011. The decision of the Cabinet was challenged before the High
Court by filing writ petitions on 1.6.2011 and during the pendency of
the said cases, the Amendment Act 2011 was passed hurriedly, that
was a totally arbitrary and unwarranted exercise underlined by sheer
political motives. The Amendment Act 2011 was promulgated on
7.6.2011 itself with retrospective effect i.e. with effect from 22.5.2011,
the date of decision of the Cabinet, not to implement the Act 2010.
The Amendment Act 2011 has taken away the effect of the judgments
of the High Court dated 30.4.2010 and of this Court dated 10.9.2010,
wherein it had been held that for Standards I & VI, the Act 2010 will
be implemented from academic year 2010-11 and for others from the
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academic year 2011-12. Under the said judgment, the implementation
of Act 2010 for Standards I & VI as directed by Court had also been
taken away by the Amendment Act 2011. The mandate of the statute
that for Standards II to V and VII to X, the Act 2010 will be
implemented from academic year 2011-12, stood completely wiped
out. Not fixing any future date for implementation of the Act 2010
while bringing the Amendment Act 2011, the legislature has
substantially repealed the Act 2010. The Statement of Objects and
Reasons are a preface to the intention of the legislature and provide
guidelines for interpreting the statutory provisions. The same provides
that the authorities have taken a decision to scrap the uniform
education system adopted under the Act 2010 and the State will search
for a better alternative. The legislature is not competent to overrule a
judicial decision of a competent court or take away its effect
completely as it amounts to trenching upon the judicial powers of the
Court. The Amendment Act 2011 is liable to be struck down solely on
this ground.
The law does not permit change of policies merely because of
another political party with a different political philosophy coming in
power, as it is the decision of the Government, the State, an Authority
1
under Article 12 of the Constitution, and not of a particular person or a
party, which is responsible for an enactment and implementation of all
laws. The High Court rightly came to the conclusion that the Expert
Committee was not unanimous on every issue regarding the
curriculum, syllabus and quality of text books. Even if some
corrections were required, it could have been done easily by issuing
administrative orders. The authorities defined under the Act 2009 had
already been appointed, and even for giving effect to the judgment of
the High Court dated 30.4.2010, it was not necessary to bring about
any fresh legislation. In case the amending statute is held to be invalid
being violative of any of the fundamental rights or arbitrary, the
repealed provisions would automatically revive. Conferring unfettered
powers on the executive, without laying down any criterion or
guidelines to enforce the Act 2010, tantamounts to abdication of its
legislative powers. Non-availability of choice of multiple text books for
a very few schools could not be a ground for scrapping the Act 2010.
The appeals lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
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6. In post-Constitutional era, an attempt has been made to create
an egalitarian society removing disparity amongst individuals, and in
order to achieve that purpose, education is one of the most important
and effective means. After independence, there has been an earnest
effort to bring education out of commercialism/mercantilism. In the
year 1951, the Secondary School Commission was constituted as per
the recommendation of Central Advisory Board of Education and an
idea was mooted by the Government to prepare textbooks and a
common syllabus in education for all students. In 1964-1966, the
report on National Education Policy was submitted by the Kothari
Commission providing for common schools suggesting that public
funded schools be opened for all children irrespective of caste, creed,
community, religion, economic conditions or social status. Quality of
education imparted to a child should not depend on wealth or class.
Tuition fee should not be charged from any child, as it would meet the
expectations of parents with average income and they would be able to
send their children to such schools. The recommendations by the
Kothari Commission were accepted and reiterated by the Yashpal
Committee in the year 1991. It was in this backdrop that in Tamil
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Nadu, there has been a demand from the public at large to bring about a
common education system for all children.
In the year 2006, in view of the struggle and
campaign and constant public pressure, the Committee under the
Chairmanship of Dr. S. Muthukumaran, former Vice-Chancellor of
Bharathidasan University was appointed which recommended to
introduce a common education system after abolishing the four
different Boards then in existence in the State. Subsequent thereto, the
Committee constituted of Shri M.P. Vijayakumar, IAS was appointed
to look into the recommendations of Dr. S. Muthukumaran Committee
which also submitted its recommendations to the Government to
implement a common education system upto Xth standard.
7. The right to education is a Fundamental Right under Article 21-
A inserted by the 86th amendment of the Constitution. Even before the
said amendment, this Court has treated the right to education as a
fundamental right. (Vide: Miss Mohini Jain v. State of Karnataka
& Ors., AIR 1992 SC 1858; Unni Krishnan, J.P. & Ors. etc. etc. v.
State of A.P & Ors. etc. etc. , AIR 1993 SC 2178; and T.M.A. Pai
Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC
481).
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There has been a campaign that right to education under Article
21-A of our Constitution be read in conformity with Articles 14 and 15
of the Constitution and there must be no discrimination in quality of
education. Thus, a common syllabus and a common curriculum is
required. The right of a child should not be restricted only to free and
compulsory education, but should be extended to have quality
education without any discrimination on the ground of their economic,
social and cultural background.
Arguments of the propagators of this movement draw support
from the judgment of U.S. Supreme Court in the case of Brown v.
Board of Education, 347 U.S. 483 (1954) over-ruling its earlier
judgment in Plessy v. Ferguson, 163 U.S. 537 (1896), where it has
been held that “separate education facilities are inherently unequal”
and thus, violate the doctrine of equality.
The propagators of this campaign canvassed that uniform
education system would achieve the code of common culture, removal
of disparity, depletion of discriminatory values in human relations. It
would enhance the virtues and improve the quality of human life,
elevate the thoughts which advance our constitutional philosophy of
equal society. In future, it may prove to be a basic preparation for
1
uniform civil code as it may help in diminishing opportunities to those
who foment fanatic and fissiparous tendencies.
In Rohit Singhal & Ors. v. Principal, Jawahar N.
Vidyalaya & Ors., AIR 2003 SC 2088, this Court expressed its great
concern regarding education for children observing as under:-
“Children are not only the future citizens
but also the future of the earth. Elders in general,
and parents and teachers in particular, owe a
responsibility for taking care of the well-being and
welfare of the children. The world shall be a better
or worse place to live according to how we treat
the children today. Education is an investment
made by the nation in its children for harvesting
a future crop of responsible adults productive of
a well functioning Society. However, children are
vulnerable. They need to be valued, nurtured,
caressed and protected.” (Emphasis added)
8. In State of Orissa v. Mamta Mohanty, (2011) 3 SCC 436,
this Court emphasised on the importance of education observing that
education connotes the whole course of scholastic instruction which a
person has received. Education connotes the process of training and
developing the knowledge, skill, mind and character of students by
formal schooling. The Court further relied upon the earlier judgment
in Osmania University Teachers’ Assn. v. State of A.P. & Anr., AIR
1987 SC 2034, wherein it has been held as under:
1
“….Democracy depends for its very life
on a high standard of general, vocational and professional
education. Dissemination of learning with search for new
knowledge with discipline all round must be maintained at
all costs.”
The case at hand is to be proceeded with keeping this ethical
backdrop in mind.
9. While deciding the case earlier, the Division Bench of the
Madras High Court on 30.4.2010 held that:
(i) The provisions of Sections 11, 12 and 14 of the Act
were ultra vires and unconstitutional, and thus struck them
down. However, considering the problems of the State
authorities, the Division Bench concluded that the State was
competent to bring in an education system common to all in
the interest of social justice and quality education. The order
further read as under:
“Implementation of the syllabus and text
books is postponed till the academic year 2011-12
or until the State makes known the norms and the
syllabus and prepares the text books in advance.”
(Emphasis added)
(ii) In the meantime the State would bring the provision of
the Act 2010 in line with the Central Act, e.g. the State shall
specify by Notification the Academic Authority and the
State Advisory Council. The Board shall also indicate what
the approved books are. The State shall by amending the
2
section or by introducing a schedule to the Act, indicate
that the syllabus is restricted to curricular subjects and all
schools are bound to follow the common syllabus only for
the curricular subjects and not for the co-curricular subjects.
The schools may choose from multiple text books vis.
Government produced text books which are prescribed text
books and the Government approved text books in all
subjects both curricular and co-curricular.
(iii) The schools shall follow the norms as far as they
are practicable. There can be no Board examination upto the
level of elementary education but the assessment norms may
be specified. Norms shall be fixed by the Board. The State
may make it clear whether this Board will also be the
Academic Authority under the Central Act. However,
considering the request of the learned Additional Advocate
General just after pronouncing the judgment the Court
accepted that Section 3 as modified by the Court would be
implemented for Standards I and VI from academic year
2010-11, provided the Board fixed the norms before
15.5.2010.
The said judgment has duly been approved by this Court
by a speaking order dated 10.9.2010.
10. Decision of the Cabinet dated 22.5.2011, to postpone the
enforcement of the Act 2010 was challenged through various writ
petitions. Meanwhile, the government issued an Ordinance which was
2
converted to Act 2011 passed on 7.6.2011 with retrospective effect i.e.
22.5.2011, the date on which the decision was taken by the Cabinet of
the State in this regard. Accordingly, writ petitions were amended
challenging the validity of the Amendment Act 2011. Interim orders
passed by the High Court therein were challenged before this Court.
11. This Court in its judgment and order dated 14.6.2011 inter-
alia, directed as under:
(i) The academic Scheme in force for the Academic year
2010-11 for Standards I and VI shall continue to be in force in
all respects for the Academic year 2011-12 as well;
(ii) Each text book and to what extent the amended syllabus
will be applicable to every course shall be finally
determined by the High Court keeping in view the amended
provisions of the Act and its impact; and
(iii) We hereby direct the State to appoint a Committee,
which it had already undertaken to appoint primarily to
examine ways and means of implementing the uniform
education system to the classes (II to V and VII to X) in
question; common syllabus and the text books which are to
be provided for the purpose.
12. The aforesaid directions make it clear that the issues with
regard to syllabus and text books were to be determined after
considering the report of the Expert Committee appointed by the State
to examine ways and means of implementing the uniform
education system in Standards (II to V and VII to X) in question,
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common syllabus and the text books which are to be provided for the
purpose. Thus, it was the Expert Committee which had been assigned
the role to find out ways and means to implement the common
education policy etc.
13. The High Court in the impugned judgment while examining
the validity of the amended provisions took note of settled legal
propositions as under:
“As there is no challenge to the Amending Act
on the ground of legislative incompetence, we
are not required to examine the effect of the
Amending Act, on such grounds or to examine
whether the Amending Act is a colourable
legislation on such aspects. Therefore, we have to
examine the matters solely based on the directions
issued by the Hon’ble Supreme Court in its order
dated 14.6.2011. The Amending Act which has the
effect of repeal of the Parent Act under the guise of
postponement of its implementation, when in fact
Parent Act has already been implemented, though
partially, the Amending Act has to be held to be
arbitrary piece of legislation which does not satisfy
the touchstone of Article 14 of the Constitution of
India.” (Emphasis added)
14. The High Court after examining the validity of the
Amended Act held:
(I) The Committee so constituted may not be
justified in submitting the report stating that
the entire uniform system of education be
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scrapped and the text books already provided
for be discarded.
(II) The Expert Committee has mis-directed itself
as it ought to have proceeded primarily to
examine the ways and means of implementing
the uniform system of education, curiously the
Committee, in its final report concluded that
no text book can be used for the academic
year 2011-12.
(III) The Committee members were not of the
unanimous opinion that the uniform syllabus
and common text books have to be discarded
from the current year. Each member has
pointed out certain defects and recommended
for certain changes and additions.
(IV) In the order dated 10.6.2011, the High Court
directed the Government to notify the
approved text books after conducting the study
with a view to comply with the direction
issued earlier on 30.4.2010. This direction was
issued to enable the schools to choose from the
multiple text books. However, these orders
and directions have been discarded by the
State.
(V) The State has exceeded its power in bringing
the Amending Act to postpone an enactment
which has already come into force. As there is
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a sudden change in the policy of the
Government from its predecessor immediately
after coming into power that the Court had to
see the impact of the amendment,
notwithstanding the competence of the
legislature to pass an Amendment Act.
(VI) If the law was passed only ostensibly but was
in truth and substance, one for accomplishing
an unauthorized object, the court would be
entitled to lift the veil and judicially review the
case.
(VII) The State has sought to achieve indirectly what
could not be achieved directly as it was prevented from
doing so in view of the judgment of the Division Bench
which upheld the validity of the Parent Act 2010.
(VIII) The Amendment Act 2011 is an arbitrary piece of
legislation and violative of Article 14 of the
Constitution and the Amendment Act 2011 was
merely a pretence to do away with the uniform
system of education under the guise of putting on
hold the implementation of the Parent Act, which the
State was not empowered to do so.
(IX) If the impugned Amending Act has to be given
effect to, it would result in unsettling various issues
and the larger interest of children would be
jeopardized.
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15. There are claims and counter claims on each factual aspect
and the High Court has dealt with each issue elaborately, in our
opinion, to an unwarranted extent. However, before we proceed
further, it may be necessary to examine the legal issues:-
I. CHANGE OF POLICY WITH THE CHANGE OF GOVERNMENT:16. The Government has to rise above the nexus of vested interests
and nepotism and eschew window-dressing. “The principles of
governance have to be tested on the touchstone of justice, equity, fair
play and if a decision is not based on justice, equity and fair play and
has taken into consideration other matters, though on the face of it, the
decision may look legitimate but as a matter of fact, the reasons are not
based on values but to achieve popular accolade, that decision cannot be
allowed to operate”. (Vide: Onkar Lal Bajaj etc. etc. v. Union of
India & Anr. etc. etc., AIR 2003 SC 2562).
17. In State of Karnataka & Anr. v. All India Manufacturers
Organisation & Ors., AIR 2006 SC 1846, this Court examined under
what circumstances the government should revoke a decision taken by
an earlier Government. The Court held that an instrumentality of the
State cannot have a case to plead contrary from that of the State and the
policy in respect of a particular project adopted by the State
2
Government should not be changed with the change of the government.
The Court further held as under:-
“It is trite law that when one of the contracting
parties is State within the meaning of Article 12 of
the Constitution, it does not cease to enjoy the
character of “State” and, therefore, it is subjected to
all the obligations that “State” has under the
Constitution. When the State’s acts of omission or
commission are tainted with extreme
arbitrariness and with mala fides, it is certainly
subject to interference by the Constitutional
Courts.” (Emphasis added)
18. While deciding the said case, reliance had been placed by the
Court on its earlier judgments in State of U.P. & Anr. v. Johri Mal,
AIR 2004 SC 3800; and State of Haryana v. State of Punjab & Anr.,
AIR 2002 SC 685. In the former, this Court held that the panel of
District Government Counsel should not be changed only on the ground
that the panel had been prepared by the earlier Government. In the latter
case, while dealing with the river water-sharing dispute between two
States, the Court observed thus:
” ………in the matter of governance of a State or in
the matter of execution of a decision taken by a
previous Government, on the basis of a consensus
arrived at, which does not involve any political
philosophy, the succeeding Government must be
held duty-bound to continue and carry on the
unfinished job rather than putting a stop to the
same.”
2
19. In M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu &
Ors., AIR 1999 SC 2468, while dealing with a similar issue, this Court
held that Mahapalika being a continuing body can be estopped from
changing its stand in a given case, but where, after holding enquiry, it
came to the conclusion that action was not in conformity with law, there
cannot be estoppel against the Mahapalika.
20. Thus, it is clear from the above, that unless it is found that act
done by the authority earlier in existence is either contrary to statutory
provisions, is unreasonable, or is against public interest, the State
should not change its stand merely because the other political party has
come into power. Political agenda of an individual or a political party
should not be subversive of rule of law.
II. COLOURABLE LEGISLATIONS:
21. In The State of Punjab & Anr. v. Gurdial Singh & Ors.,
AIR 1980 SC 319, this Court held that when power is exercised in bad
faith to attain ends beyond the sanctioned purposes of power by
simulation or pretension of gaining a legitimate goal, it is called
colourable exercise of power. The action becomes bad where the true
object is to reach an end different from the one for which the power is
entrusted, guided by an extraneous consideration, whether good or bad
2
but irrelevant to the entrustment. When the custodian of power is
influenced in exercise of its power by considerations outside those for
promotion of which the power is vested, the action becomes bad for the
reason that power has not been exercised bonafide for the end design.
22. It has consistently been held by this Court that the doctrine of
malafide does not involve any question of bonafide or malafide on the
part of legislature as in such a case, the Court is concerned to a limited
issue of competence of the particular legislature to enact a particular
law. If the legislature is competent to pass a particular enactment, the
motives which impelled it to an act are really irrelevant. On the other
hand, if the legislature lacks competence, the question of motive does
not arrive at all. Therefore, whether a statute is constitutional or not is,
thus, always a question of power of the legislature to enact that Statute.
Motive of the legislature while enacting a Statute is
inconsequential: “Malice or motive is beside the point, and it is not
permissible to suggest parliamentary incompetence on the score of
mala fides.”
The legislature, as a body, cannot be accused of having passed a
law for an extraneous purpose. This kind of “transferred malice” is
unknown in the field of legislation.
2
[See: K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, AIR
1953 SC 375; R.S. Joshi, Sales Tax Officer, Gujarat & Ors. v. Ajit
Mills Limited & Anr., AIR 1977 SC 2279; K. Nagaraj & Ors. v.
State of Andhra Pradesh & Anr., AIR 1985 SC 551; Welfare
Assocn. A.R.P., Maharashtra & Anr. v. Ranjit P. Gohil & Ors.,
AIR 2003 SC 1266; and State of Kerala & Anr. v. Peoples Union for
Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46].
III. LAWS CONTRAVENING ARTICLE 13(2):
23. The legislative competence can be adjudged with reference to
Articles 245 and 246 of the Constitution read with the three lists given
in the Seventh Schedule as well as with reference to Article 13(2) of
the Constitution which prohibits the State from making any law which
takes away or abridges the rights conferred by Part-III of the
Constitution and provides that any law made in contravention of this
Clause shall, to the extent of contravention be void.
24. In Deep Chand & Ors. v. State of U.P. & Ors., AIR 1959
SC 648, this Court held:
“There is a clear distinction between the two
clauses of Article 13. Under cl. (1) of Article 13, a
pre-Constitution law subsists except to the extent
of its inconsistency with the provisions of Part III;
whereas, no post-Constitution law can be made
3
contravening the provisions of Part III, and
therefore the law, to that extent, though made, is a
nullity from its inception of this clear distinction is
borne in mind much of the cloud raised is
dispelled.
When cl. (2) of Art. 13 says in clear and
unambiguous terms that no State shall make any law
which takes away or abridges the rights conferred by
Part III, it will not avail the State to contend either
that the clause does not embody a curtailment of the
power to legislate or that it imposes only a check but
not a prohibition. A constitutional prohibition against
a State making certain laws cannot be whittled down
by analogy or by drawing inspiration from decisions
on the provisions of other Constitutions; nor can we
appreciate the argument that the words “any law” in
the second line of Art. 13(2) posits the survival of the
law made in the teeth of such prohibition. It is said
that a law can come into existence only when it is
made and therefore any law made in contravention of
that clause presupposes that the law made is not a
nullity. This argument may be subtle but is not sound.
The words ‘any law” in that clause can only mean an
Act passed or made factually, notwithstanding the
prohibition. The result of such contravention is stated
in that clause. A plain reading of the clause
indicates, without any reasonable doubt, that the
prohibition goes to the root of the matter and limits
the State’s power to make law ; the law made in
spite of the prohibition is a still born law.”
(Emphasis
added)
(See also: Mohd. Shaukat Hussain Khan v. State of A.P. AIR 1974
SC 1480).
3
25. In Behram Khurshid Pesikaka v. State of Bombay AIR
1955 SC 123; and Mahendra Lal Jaini v. State of Uttar Pradesh &
Ors. AIR 1963 SC 1019, this Court held that in case a statute violates
any of the fundamental rights enshrined in Part III of the Constitution of
India, such statute remains still-born; void; ineffectual and nugatory,
without having legal force and effect in view of the provisions of
Article 13(2) of the Constitution. The effect of the declaration of a
statute as unconstitutional amounts to as if it has never been in
existence. Rights cannot be built up under it; contracts which depend
upon it for their consideration are void. The unconstitutional act is not
the law. It confers no right and imposes no duties. More so, it does not
uphold any protection nor create any office. In legal contemplation it
remains not operative as it has never been passed. In case the statute
had been declared unconstitutional, the effect being just to ignore or
disregard.
IV. DOCTRINE OF LIFTING THE VEIL:
26. However, in order to test the constitutional validity of the Act,
where it is alleged that the statute violates the fundamental rights, it is
necessary to ascertain its true nature and character and the impact of
the Act. Thus, courts may examine with some strictness the substance
3
of the legislation and for that purpose, the court has to look behind the
form and appearance thereof to discover the true character and nature
of the legislation. Its purport and intent have to be determined. In order
to do so it is permissible in law to take into consideration all factors
such as history of the legislation, the purpose thereof, the surrounding
circumstances and conditions, the mischief which it intended to
suppress, the remedy for the disease which the legislature resolved to
cure and the true reason for the remedy. (Vide: Dwarkadas Shrinivas
v. The Sholapur Spinning & Weaving Co. Ltd. & Ors., AIR 1954
SC 119; Mahant Moti Das v. S.P. Sahi, The Special Officer in
charge of Hindu Religious Trust & Ors., AIR 1959 SC 942; and
Hamdard Dawakhana & Anr. v. Union of India & Ors., AIR 1960
SC 554).
V. INTERFERENCE BY COURT WITH EXPERT BODY'S OPINION:27. Undoubtedly, the Court lacks expertise especially in disputes
relating to policies of pure academic educational matters. Therefore,
generally it should abide by the opinion of the Expert Body. The
Constitution Bench of this Court in The University of Mysore & Anr.
v. C.D. Govinda Rao & Anr., AIR 1965 SC 491 held that “normally
the courts should be slow to interfere with the opinions expressed by the
3
experts”. It would normally be wise and safe for the courts to leave such
decisions to experts who are more familiar with the problems they face
than the courts generally can be. This view has consistently been
reiterated by this Court in Km. Neelima Misra v. Dr. Harinder Kaur
Paintal & Ors., AIR 1990 SC 1402; The Secretary & Curator,
Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity &
Ors., AIR 2010 SC 1285; Dr. Basavaiah v. Dr. H.L. Ramesh & Ors.,
(2010) 8 SCC 372; and State of H.P. & Ors. v. H.P. Nizi Vyavsayik
Prishikshan Kendra Sangh, (2011) 6 SCC 597.
VI. WHAT CANNOT BE DONE DIRECTLY-CANNOT BE DONE INDIRECTLY:28. It is a settled proposition of law that what cannot be done
directly, is not permissible to be done obliquely, meaning thereby,
whatever is prohibited by law to be done, cannot legally be effected by
an indirect and circuitous contrivance on the principle of “quando
aliquid prohibetur, prohibetur at omne per quod devenitur ad illud.”
An authority cannot be permitted to evade a law by “shift or
contrivance”. (See: Jagir Singh v. Ranbir Singh, AIR 1979 SC 381;
M.C. Mehta v. Kamal Nath & Ors., AIR 2000 SC 1997; and Sant
3
Lal Gupta & Ors. v. Modern Co-operative Group Housing Society
Ltd. & Ors., JT 2010 (11) SC 273).
VII. CONDITIONAL LEGISLATION:
29. As the legislature cannot carry out each and every function by
itself, it may be necessary to delegate its power for certain limited
purposes in favour of the executive. Delegating such powers itself is a
legislative function. Such delegation of power, however, cannot be
wide, uncanalised or unguided. The legislature while delegating such
power is required to lay down the criteria or standard so as to
enable the delegatee to act within the framework of the statute. The
principle on which the power of the legislature is to be exercised is
required to be disclosed. It is also trite that essential legislative
functions cannot be delegated.
Delegation cannot be extended to “repealing or
altering in essential particulars of laws which are already in force in the
area in question”. (Vide: re: Article 143, Constitution of India and
Delhi Laws Act (1912) etc., AIR 1951 SC 332).
30. The legislature while delegating such powers has to specify
that on certain data or facts being found and ascertained by an
3
executive authority, the operation of the Act can be extended to certain
areas or may be brought into force on such determination which is
described as conditional legislation. While doing so, the legislature
must retain in its own hands the essential legislative functions and what
can be delegated is the task of subordinate legislation necessary for
implementing the purpose and object of the Act. Where the
legislative policy is enunciated with sufficient clearness or a standard is
laid down, the courts should not interfere. What guidance should be
given and to what extent and whether guidance has been given in a
particular case at all depends on consideration of the provisions of the
particular Act with which the Court has to deal including its preamble.
(See: In re: Delhi Laws Act (supra); The Municipal Corporation of
Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi & Anr.,
AIR 1968 SC 1232).
31. In Rajnarain Singh v. Chairman, Patna Administration
Committee, Patna & Anr., AIR 1954 SC 569, a Constitution Bench
of this Court explained the ratio of the judgment in re: Delhi Laws Act
(supra) observing as under:
“In our opinion, the majority view was that an
executive authority can be authorised to modify either
3
existing or future laws but not any essential feature.
Exactly, what constitutes an essential feature cannot be
enunciated in general terms, and there was some divergence
of view about this in the former case, but this much is clear
from the opinions set out above: it cannot include a change
of policy.” (Emphasis
added)
32. In Bangalore Woollen, Cotton and Silk Mills Co. Ltd.,
Bangalore v. Corporation of the City of Bangalore by its
Commissioner, Bangalore City, AIR 1962 SC 1263, this Court dealt
with a similar issue in a case where the legislature had conferred power
upon the Municipal Corporation to determine on what other goods and
under what conditions the tax should be levied. In that case the
legislature had prepared a list of goods which could be subjected to tax
and the rate had also been fixed in addition thereto. The powers had
been conferred on the Municipal Corporation. This Court therefore
came to the conclusion that it was not a case of excessive delegation
which may be held to be bad in view of the judgment in Hamdard
Dawakhana v. Union of India, AIR 1960 SC 554, rather it was a case
of conditional legislation.
33. In Basant Kumar Sarkar & Ors. v. The Eagle Rolling
Mills Ltd. & Ors., AIR 1964 SC 1260, this Court examined the issue
3
of extension of Employees State Insurance Act, i.e. temporal
application of employees insurance legislation and held that it was a
case of conditional legislation and not of excessive delegation because
there was no element of delegation therein at all. The Court held as
under:
“Thus, it is clear that when extending the
Act to different establishments, the relevant Government is
given the power to constitute a Corporation for the
administration of the scheme of Employees State Insurance.
The course adopted by modern legislatures in dealing with
welfare scheme has uniformly conformed to the same
pattern. The legislature evolves a scheme of socio-economic
welfare, makes elaborate provisions in respect of it and
leaves it to the Government concerned to decide when, how
and in what manner the scheme should be introduced. That,
in our opinion, cannot amount to excessive delegation.”
34. In view of the above, the law stands crystallised to the effect
that in case the legislature wants to delegate its power in respect of the
implementation of the law enacted by it, it must provide sufficient
guidelines, conditions, on fulfillment of which, the Act would be
enforced by the delegatee. Conferring unfettered, uncanalised powers
without laying down certain norms for enforcement of the Act
tantamounts to abdication of legislative power by the legislature which
is not permissible in law. More so, where the Act has already come into
3
force, such a power cannot be exercised just to nullify its
commencement thereof.
VIII. LEGISLATIVE ARBITRARINESS:
35. In Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.,
AIR 1981 SC 487, this Court held that Article 14 strikes at arbitrariness
because an action that is arbitrary, must necessarily involve negation of
equality. Whenever therefore, there is arbitrariness in State action,
whether it be of the legislature or of the executive, Article 14
immediately springs into action and strikes down such State action.
(See also : E.P. Royappa v. State of Tamil Nadu & Anr., AIR 1974
SC 555; and Smt. Meneka Gandhi v. Union of India & Anr. AIR
1978 SC 597).
36. In M/s. Sharma Transport rep. by D.P. Sharma v.
Government of A.P. & Ors. AIR 2002 SC 322, this Court defined
arbitrariness observing that party has to satisfy that the action was not
reasonable and was manifestly arbitrary. The expression `arbitrarily’
means; act done in an unreasonable manner, as fixed or done
capriciously or at pleasure without adequate determining principle, not
3
founded in the nature of things, non-rational, not done or acting
according to reason or judgment, depending on the will alone.
37. In Bombay Dyeing & Manufacturing Co. Ltd. (3) v. Bombay
Environmental Action Group & Ors. AIR 2006 SC 1489, this Court
held that arbitrariness on the part of the legislature so as to make the
legislation violative of Article 14 of the Constitution should ordinarily
be manifest arbitrariness.
38. In cases of Bidhannagar (Salt Lake) Welfare Assn. v.
Central Valuation Board & Ors. AIR 2007 SC 2276; and Grand
Kakatiya Sheraton Hotel and Towers Employees and Workers
Union v. Srinivasa Resorts Limited & Ors. AIR 2009 SC 2337, this
Court held that a law cannot be declared ultra vires on the ground of
hardship but can be done so on the ground of total unreasonableness.
The legislation can be questioned as arbitrary and ultra vires under
Article 14. However, to declare an Act ultra vires under Article14, the
Court must be satisfied in respect of substantive unreasonableness in
the statute itself.
IX. AMENDING ACT-IF STRUCK DOWN-WHETHER OLD LAW WILL REVIVE: 439. This Court in Bhagat Ram Sharma v. Union of India &
Ors., AIR 1988 SC 740 explained the distinction between repeal and
amendment observing that amendment includes abrogation or deletion
of a provision in an existing statute. If the amendment of an existing
law is small, the Act prefaces to amend; if it is extensive, it repeals and
re-enacts it.
40. In State of Rajasthan v. Mangilal Pindwal AIR 1996 SC
2181, this Court held that when the statute is amended, the process of
substitution of statutory provisions consists of two parts:-
(i) the old rule is made to cease to exist; (ii) the new rule is brought into existence in its place.In other words, the substitution of a provision results in repeal of the
earlier provision and its replacement by the new provision. (See also:
Koteswar Vittal Kamath v. K.Rangappa Baliga & Co. AIR 1969 SC
504).
41. In Firm A.T.B. Mehtab Majid and Co. v. State of Madras
& Anr., AIR 1963 SC 928, this Court held:
“22. It is a settled legal proposition that whenever
an Act is repealed, it must be considered as if it
had never existed. The object of repeal is to
obliterate the Act from the statutory books, except
4
for certain purposes as provided under Section 6
of the General Clauses Act, 1897. Repeal is not a
matter of mere form but is of substance. Therefore,
on repeal, the earlier provisions stand
obliterated/abrogated/wiped out wholly i.e. pro
tanto repeal”
42. Thus, undoubtedly, submission made by learned senior
counsel on behalf of the respondents that once the Act stands repealed
and the amending Act is struck down by the Court being invalid and
ultra vires/unconstitutional on the ground of legislative incompetence,
the repealed Act will automatically revive is preponderous and needs
no further consideration.
This very Bench in State of Uttar Pradesh & Ors. v.
Hirendra Pal Singh & Ors., (2011) 5 SCC 305, after placing reliance
upon a large number of earlier judgments particularly in Ameer-un-
Nissa Begum v. Mahboob Begum & Ors., AIR 1955 SC 352; B.N.
Tewari v. Union of India & Ors., AIR 1965 SC 1430; India Tobacco
Co. Ltd. v. CTO, Bhavanipore & Ors., AIR 1975 SC 155; Indian
Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of
India & Ors., AIR 1986 SC 515; West U.P. Sugar Mills Assn. v.
State of U.P., AIR 2002 SC 948; Zile Singh v. State of Haryana &
Ors., (2004) 8 SCC 1; State of Kerala v. Peoples Union for Civil
4
Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46; and Firm
A.T.B. Mehtab Majid and Co. (supra) reached the same conclusion.
43. There is another limb of this legal proposition, that is, where
the Act is struck down by the Court being invalid, on the ground of
arbitrariness in view of the provisions of Article 14 of the Constitution
or being violative of fundamental rights enshrined in Part-III of the
Constitution, such Act can be described as void ab-initio meaning
thereby unconstitutional, still born or having no existence at all. In
such a situation, the Act which stood repealed, stands revived
automatically. (See: Behram Khurshid Pesikaka (Supra); and
Mahendra Lal Jaini (Supra)
44. In Harbilas Rai Bansal v. State of Punjab & Anr. AIR 1996
SC 857, while dealing with the similar situation, this Court struck down
the Amending Act being violative of Article 14 of the Constitution.
The Court further directed as under:
“We declare the abovesaid provision of the
amendment as constitutionally invalid and as a
consequence restore the original provisions of the
Act which were operating before coming into
force of the Amendment Act.” (Emphasis
added)
4
45. Thus, the law on the issues stands crystallised that in case the
Amending Act is struck down by the court for want of legislative
competence or is violative of any of the fundamental rights enshrined
in Part III of the Constitution, it would be un-enforceable in view of the
provision under Article 13(2) of the Constitution and in such
circumstances the old Act would revive, but not otherwise. This
proposition of law is, however, not applicable so far as subordinate
legislation is concerned.
X. WHETHER LEGISLATURE CAN OVERRULE THE JUDGMENT OF THE COURT: 46. A Constitution Bench of this Court in Shri Prithvi CottonMills Ltd. & Anr. v. Broach Borough Municipality & Ors., AIR
1970 SC 192, examined the issue and held as under:
“…..When a legislature sets out to validate a tax
declared by a court to be illegally collected under an
ineffective or an invalid law, the cause for
ineffectiveness or invalidity must be removed before
validation can be said to take place effectively. The
most important condition, of course, is that the
legislature must possess the power to impose the tax,
for, if it does not, the action must ever remain
ineffective and illegal. Granted legislative
competence, it is not sufficient to declare merely that
4
the decision of the Court shall not bind for that it
tantamounts to reversing the decision in exercise of
judicial power which the legislature does not possess
or exercise. A court’s decision must always bind
unless the conditions on which it is based are so
fundamentally altered that the decision could not
have been given in the altered circumstances…..”
47. In S.R. Bhagwat & Ors. v. State of Mysore, AIR 1996 SC 188,
a similar issue was considered by this Court while considering the
provisions of Karnataka State Civil Services (Regulation of Promotion,
Pay & Pension) Act, 1973. In that case, the provisions of that Act
disentitled deemed promotees to arrears for the period prior to actual
promotion. These provisions were held to be not applicable where
directions of the competent court against the State had become final.
The Court observed that any action to take away the power of judicial
decision shall be ultra vires the powers of the State legislature as it
encroached upon judicial review and tried to overrule the judicial
decision binding between the parties. The binding judicial
pronouncement between the parties cannot be made ineffective with
the aid of any legislative power by enacting a provision which in
substance overrules such a judgment and is not in the realm of a
legislative enactment which displaces the basis or foundation of the
judgment and uniformly applies to a class of persons concerned with
4
the entire subject sought to be covered by such an enactment having
retrospective effect.
48. While deciding the said case, this Court placed reliance on its
earlier judgments in Re, Cauvery Water Disputes Tribunal, AIR
1992 SC 522; and G.C. Kanungo v. State of Orissa, AIR 1995 SC
1655. In the former case, the Constitution Bench of this Court held
that the legislature could change the basis on which a decision was
given by the Court and, thus, change the law in general, which would
affect a class of persons and events at large. However, it cannot set
aside an individual decision inter-parties and affect their rights and
liabilities alone. Such an act on the part of the legislature amounts to
exercising the judicial power of the State and functioning as an
appellate court or tribunal. In the latter case, a similar view had been
reiterated observing that the award of the tribunal could not be nullified
by an Amendment Act having recourse to the legislative power as it
tantamounts to nothing else, but “the abuse of this power of
legislature.”
49. In Madan Mohan Pathak & Anr. v. Union of India & Ors.,
AIR 1978 SC 803, a seven-Judge Bench of this Court considered a
4
similar issue and held that the act of legislature cannot annul a final
judgment giving effect to rights of any party. A declarative judgment
holding an imposition of tax invalid can be superseded by a re-
validation statute. But where the factual or legal situation is
retrospectively altered by an act of legislature, the judgment stands,
unless reversed by an appeal or review. Bringing a legislation in order
to nullify the judgment of a competent court would amount to trenching
upon the judicial power and no legislation is permissible which is meant
to set aside the result of the mandamus issued by a court even though,
the amending statute may not mention such an objection. The rights
embodied in a judgment could not be taken away by the legislature
indirectly.
A similar view has been reiterated in K. Sankaran Nair (Dead)
through LRs. v. Devaki Amma Malathy Amma & Ors., (1996) 11
SCC 428.
50. The legislature cannot by bare declaration, without anything
more, directly overrule, reverse or override a judicial decision.
However it can, in exercise of the plenary powers conferred upon it by
Articles 245 and 246 of the Constitution, render a judicial decision
4
ineffective by enacting a valid law fundamentally altering or changing
the conditions on which such a decision is based.
(Vide: A. Manjula Bhashini & Ors. v. Managing Director, Andhra
Pradesh Women’s Cooperative Finance Corporation Ltd. & Anr.,
(2009) 8 SCC 431).
51. In view of the above, the law on the issue can be summarised
to the effect that a judicial pronouncement of a competent court cannot
be annulled by the legislature in exercise of its legislative powers for
any reason whatsoever. The legislature, in order to revalidate the law,
can re-frame the conditions existing prior to the judgment on the basis
of which certain statutory provisions had been declared ultra vires and
unconstitutional.
XI. READING OF THE STATEMENT OF OBJECTS AND REASONS: WHILE INTERPRETING THE STATUTORY PROVISIONS:52. The Statement of Objects and Reasons appended to the Bill is not
admissible as an aid to the construction of the Act to be passed, but it
can be used for limited purpose for ascertaining the conditions which
prevailed at that time which necessitated the making of the law, and
the extent and urgency of the evil, which it sought to remedy. The
Statement of Objects and Reasons may be relevant to find out what is
the objective of any given statute passed by the legislature. It may
4
provide for the reasons which induced the legislature to enact the
statute. “For the purpose of deciphering the objects and purport of
the Act, the court can look to the Statement of Objects and Reasons
thereof”. (Vide: Kavalappara Kottarathil Kochuni @ Moopil
Nayar v. The States of Madras and Kerala & Ors., AIR 1960 SC
1080; and Tata Power Company Ltd. v. Reliance Energy Ltd. &
Ors., (2009) 16 SCC 659).
53. In A. Manjula Bhashini & Ors. (Supra), this Court held as under:
“The proposition which can be culled out from the
aforementioned judgments is that although the Statement of
Objects and Reasons contained in the Bill leading to
enactment of the particular Act cannot be made the sole
basis for construing the provisions contained therein, the
same can be referred to for understanding the background,
the antecedent state of affairs and the mischief sought to be
remedied by the statute. The Statement of Objects and
Reasons can also be looked into as an external aid for
appreciating the true intent of the legislature and/or the
object sought to be achieved by enactment of the particular
Act or for judging reasonableness of the classification made
by such Act.” (Emphasis added)
54. Thus, in view of the above, the Statement of Objects and
Reasons of any enactment spells out the core reason for which the
enactment is brought and it can be looked into for appreciating the true
intent of the legislature or to find out the object sought to be achieved
4
by enactment of the particular Act or even for judging the
reasonableness of the classifications made by such Act.
CASE ON MERITS:
55. The instant case requires to be examined in the light of the
aforesaid settled legal propositions, though it may not be necessary to
deal with all these issues in great detail as the High Court has already
dealt with the same elaborately.
56. In the instant case, as the Expert Committee had submitted a
report and most of the members had given their opinion on different
issues and as we have also examined the reports, it is evident from the
same that each member had pointed out certain defects in the
curriculum as well as in the text books etc. There was no unanimity
on any particular issue, as each member has expressed a different
opinion on different issues/subjects.
57. The counter affidavit dated 7.6.2011 was filed before the High
Court by Ms. D. Sabitha, the Secretary to the Government Education
Department on behalf of all the respondents therein. In reply to the
Writ Petition she stated as under:
5
“I. Further the prayer for an issuance of writ of
declaration declaring that the decision of the
Cabinet dated 22.5.2011 by the Government of
Tamil Nadu to withhold the implementation of
the Tamil Nadu Uniform System of School
Education Act, 2010 for the academic year 2011-
12 as published vide News Release No. 289 dt.
22.5.2011 as null and void is not sustainable in
law for the sole reason that the policy decision
taken by the Cabinet would not be generally
subject to judicial review. It is further submitted
that the decision taken by the Cabinet to review
the implementation of the Uniform System of
School Education for Standards I to X is purely in
the interest of students, parents and public which
is within the domain of the popular Government..
II. Further the averment that text books printed
would be wasted and there would be a loss
caused to the tune of 200 crore rupees seems to
have been made without understanding the
implications that could be created due to the
implementation of the illegal policy formulated
by the erstwhile Government. The Government
has a mandate to ensure the quality of education
and welfare of the students. It is with this intent
the present policy is being formulated……
III. The State, therefore, proposes to appoint
a high powered committee consisting of experts
in the field to undertake a detailed study of the
more appropriate system to be adopted for
ensuring the improvement of quality of
education and social justice by providing a level
playing field to all sections of society.
IV. At this juncture, it is pointed out that the
books that have been printed already are
substandard and wanting in quality and if
followed, would lead to deterioration of
5
academic Standards of school students and
therefore the Cabinet has rightly taken a policy
decision after thorough deliberation to stall the
implementation of the Uniform System of
School Education Act, 2010 as it suffers from
illegality, irrationality and unconstitutionality….
” (Emphasis added)
On amendment of the writ petitions, another counter affidavit
was filed by Ms. D. Sabitha, the same officer, wherein she stated on
oath, inter-alia, as under:
“I. This being so, the Government has taken
a decision to stall the implementation of the
policy of the previous government that is devoid
of any legal sanction and has constituted a
committee to formulate an appropriate solution
in order to redress the complications created due
to the implementation of the illegal policy.
II…….In the Cabinet meeting held on 22.5.2011,
it was initially decided to do away with the
uniform Education system. Since the schools
were reopening on 1st June, 2011, orders had to
be issued for printing of textbooks. It is
submitted that the advertisement for inviting
tenders for printing textbooks was issued on
23.5.2011.”
(Emphasis added)
58. The High Court, after taking note of the counter affidavit filed
by the present appellants labeling the Act 2010 as illegal, irrational
and unconstitutional, after it had already undergone an intense
judicial scrutiny and held to be Constitutionally valid by the High
5
Court vide judgment and order dated 30.4.2010 and by this Court vide
judgment and order dated 10.9.2010, the question that arises for
consideration is as to whether it was permissible for the Secretary of
the Education Department to label the Act as illegal and
unconstitutional. Does such a conduct amount to sitting in appeal
against the judgments of the High Court as well as of this Court or does
it not amount to an attempt to take away the effect of the judgments of
the High Court as well of this Court ?
59. The High Court has taken note of these pleadings taken by the
State authorities :
“From a perusal of the counter affidavit filed by
the Secretary, School Education Department, it is
manifestly clear that the Government has taken the
consistent stand that the policy formulated by the
previous Government by implementing the
Uniform Syllabus System was illegal and that the
amount of Rs. 200 crores spent for printing the
textbooks under the new syllabus was because of
the wrong policy……” (Emphasis added)
The report submitted by the Expert Committee, in
fact, did not contain any collective opinion. All the members have
expressed their different views and most of the members had approved
the contents of the text books, in general, pointing out certain defects
which could be cured by issuing corrigendums or replacements etc.
5
60. Section 18 of the Act 2010 enables the State Government to
remove difficulties, if any, in implementation of the said Act. The
provisions thereof read as under:
“If any difficulty arises in giving effect to the
provisions of this Act, the Government may, by
order published in the Tamil Nadu Government
Gazette, make such provisions, not inconsistent
with the provisions of this Act as appears to them
to be necessary or expedient for removing the
difficulty;…”
Therefore, the amendment itself is totally
unwarranted. If the State Government was facing any difficulty, the
same could have been removed by issuing a Government order under
Section 18 of the Act which conferred all residuary powers on it.
The nature of the defect as canvassed by the State counsel is
reflected in the pleadings that indicates an undesirable inclusion of
certain chapters that do not subserve the purpose of a uniform standard
and multicultural educational pattern. The contention appears to be
that such material may damagingly divert the mind of the young
students towards a motivated attempt of individualistic glorification. In
the opinion of the court, if such material does create any adverse
impact or is otherwise targeted towards unwanted propaganda without
any contribution towards the educational standard sought to be
5
achieved, then such material upon a thorough investigation and
deliberation by the Expert Committee could be deleted with the aid of
Section 18 of the Act 2010. It appears that the State Government while
introducing the Amendment Act 2011 did not appropriately focus
attention on the provision of Section 18 quoted hereinabove that are
inclusive of all powers that may be required to remove such
difficulties. Had the said provision been carefully noted, there would
have been no occasion to suspend the implementation of the Act 2010.
What could have been done with the help of a needle was unnecessarily
attempted by wielding a sword from the blunt side. Not only this the
said provision was not even pointed out by the State machinery before
the High Court nor did its legal infantry choose to examine the same.
Even before us the learned counsel were unable to successfully counter
the availability of such powers with the State Government.
In addition to that, needless to re-emphasize, the
High Court while dealing with the validity of the provisions of the Act
2010, had already conceded liberty to the State Government to remove
defects and had on the other hand struck down the offending provisions
in Section 14 thereof empowering the State Government to compel the
Education Board to be bound on questions of policy. Thus, the State
5
Government was left with sufficient powers to deal with the nature of
defects appropriately under the said judgment with a statutory power
available for that purpose under Section 18 of the Act 2010.
61. It may be relevant to point out here that Statement of Objects
and Reasons given to the Amendment Act 2011 reveal a very sorry
state of affairs and point out towards the intention of the legislature not
to enforce the Act 2010 at all. Relevant part of clause 9 of the
Statement of Objects and Reasons of the Amendment Act 2011 reads
as under:
“…the State proposes to appoint a high powered
committee consisting of experts in the field to undertake a
detailed study of the more appropriate system to be
adopted for ensuring the improvement of quality and
education and social justice by providing a level playing
field to all sections of society. ..” (Emphasis added)
The aforesaid quoted part of the same makes it clear that the
Government intended to introduce a more appropriate system to ensure
the improvement of quality education, meaning thereby, that the State
has no intention to enforce the uniform education system as provided
under the Act 2010.
62. The relevant part of Section 3 of the Act 2010 reads as under:
5
3(1) Every school in the State shall follow the common syllabus
and text books as may be specified by the Board for each subject –
(a) in Standards I and VI, commencing from the academic year
2010-2011;
(b) in Standards II to V and Standards VII to X from the
academic year 2011-2012.
(2) Subject to the provisions of sub-section (1), every school in
the State shall –
(a) follow the norms fixed by the Board for giving instruction in
each subject;
(b) follow the norms for conducting examination as may be
specified by the Board.
63. After the Amendment Act 2011, Section 3 reads as under:
“3. Schools to follow common syllabus –
(1) Every school in the State shall follow the common
syllabus as may be specified by the Board for each subject
in Standards 1 to X from such academic year as may
be notified by the Government in the Tamil Nadu
Government Gazette. The Government may specify
different academic years for different Standards.
(2) Until notification under sub-section (1) is issued, the
syllabus and text books for every school in the State shall
be as follows:
(a) in Standards I and VI, the system as prevailing prior to
academic year 2010-11 shall continue; and
(b) in Standards II to V and VII to X, the existing system
shall continue,” (Emphasis added)
5
64. The legislature in its wisdom had enforced the Act 2010 providing
for common syllabus and text books for Standards I and VI from the
academic year 2010-2011 and for Standards II to V and VII to X from
the academic year 2011-2012, the validity of this law has been upheld
by the High Court vide judgment and order dated 30.4.2010 and by this
Court vide order dated 10.9.2010. Certain directions had been issued
by the High Court which could be carried out easily by the State
exercising its administrative powers without resorting to any legislative
function. By the Amendment Act, even the application of Act 2010, so
far as Standards I and VI are concerned, has also been withdrawn
without realising that students who have studied in academic year 2010-
11 would have difficulty in the next higher class if they are given a
different syllabus and different kind of text books. The Amendment
Act 2011 provided that the students in Standards I and VI would also
revert back to the old system which had already elapsed.
65. The Amendment Act 2011, in fact, nullified the earlier judgment
of the High Court dated 30.4.2010, duly approved by the order of this
Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as
unfettered and uncanalised power has been bestowed upon the
Government to notify the commencement of the uniform education
5
system. State Government may submit only to the extent that the High
Court itself had given option to the State to implement the Common
Education System after ensuring compliance of directions issued by the
High Court itself. However, no such liberty was available to the State
so far as Standards I and VI are concerned.
66. It is also evident from the record that after the new
Government was sworn in on 16.5.2011, tenders were invited to publish
books being taught under the old system on 21.5.2011 and subsequent
thereto, it was decided in the Cabinet meeting on 22.5.2011 not to
implement the uniform education system. Whole exercise of amending
the Act 2010 was carried out most hurriedly. However, proceeding in
haste itself cannot be a ground of challenge to the validity of a Statute
though proceeding in haste amounts to arbitrariness and in such a fact-
situation the administrative order becomes liable to be quashed. The
facts mentioned hereinabove reveal that tenders had been invited on
21.5.2011 for publishing the text books, taught under the old system
even prior to Cabinet meeting dated 22.5.2011. Thus, a decision had
already been taken not to implement the Common Education System.
67. If one crore twenty lacs students are now to revert back to the
multiple syllabus with the syllabus and textbooks applicable prior to
5
2010 after the academic term of 2011-12 has begun, they would be
utterly confused and would be put to enormous stress. Students can not
be put to so much strain and stress unnecessarily. The entire exercise by
the Government is therefore arbitrary, discriminatory and oppressive to
students, teachers and parents.
The State Government should have acted bearing in mind
that “destiny of a nation rests with its youths”. Personality of a child is
developed at the time of basic education during his formative years of
life. Their career should not be left in dolorific conditions with
uncertainty to such a great extent. The younger generation has to
compete in global market. Education is not a consumer service nor the
educational institution can be equated with shops, therefore, “there are
statutory prohibitions for establishing and administering educational
institution without prior permission or approval by the authority
concerned.”
Thus, the State Government could by no means be justified in
amending the provisions of Section 3 of the Act 2010, particularly in
such uncertain terms. Undertaking given by the learned Advocate
General to the High Court that the Act 2010 would be implemented in
6
the academic year 2012-13, cannot be a good reason to hold the Act
2011 valid.
68 Submissions advanced on behalf of the appellants that it is
within the exclusive domain of the legislature to fix the date of
commencement of an Act, and court has no competence to interfere in
such a matter, is totally misconceived for the reason that the legislature
in its wisdom had fixed the dates of commencement of the Act though in
a phased manner. The Act commenced into force accordingly. The
courts intervened in the matter in peculiar circumstances and passed
certain orders in this regard also. The legislature could not wash off the
effect of those judgments at all. The judgments cited to buttress the
arguments, particularly in A.K. Roy v. Union of India & Anr., AIR
1982 SC 710; Aeltemesh Rein v. Union of India & Ors., AIR 1988 SC
1768; Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5
SCC 44; and Common Cause v. Union of India & Ors., AIR 2003 SC
4493, wherein it has been held that a writ in the nature of mandamus
directing the Central Government to bring a statute or a provision in a
statute into force in exercise of powers conferred by Parliament in that
statute cannot be issued, stand distinguished.
6
69. As explained hereinabove, the Amendment Act 2011, to the
extent it applies to enforcement of Act 2010, nullified the judgment of
the High Court dated 30.4.2010 duly approved by this Court vide order
dated 10.9.2010. Thus, we concur with the conclusion reached by the
High Court in this regard.
70. To summarise our conclusions:
(i) The Act 2010 was enacted to enforce the uniform education
system in the State of Tamil Nadu in order to impart quality education
to all children, without any discrimination on the ground of their
economic, social or cultural background.
(ii) The Act itself provided for its commencement giving the
academic years though, in phased programme i.e. for Standards I to VI
from the academic year 2010-2011; and for other Standards from
academic year 2011-2012, thus, enforcement was not dependent on any
further notification.
(iii) The validity of the Act was challenged by various persons/
institutions and societies, parents of the students, but mainly by private
schools organisations, opposing the common education system in the
entire State. The writ petitions were dismissed upholding the validity of
the Act. However, few provisions, particularly, the provisions of
Sections 11, 12 and 14 were struck down by the High Court vide
judgment and order dated 30.4.2010. The said judgment of the High
Court was duly approved by a speaking order of this Court dated
10.9.2010. Certain directions had been given in the said judgment by the
6
High Court which could have been complied with by issuing executive
directions. Moreover, directions issued by the High Court could be
complied with even by changing the Schedule as provided in the
judgment dated 30.4.2010 itself.
(iv) Section 18 of the Act 2010 itself enabled the Government to
issue any executive direction to remove any difficulty to enforce the
statutory provisions of the Act 2010. The Act 2010 itself provided for
an adequate residuary power with the government to remove any
difficulty in enforcement of the Act 2010, by issuing an administrative
order.
(v) Justification pleaded by the State that Amendment Act 2011
was brought to avoid contempt proceedings as the directions issued by
the High Court could not be complied with, is totally a misconceived
idea and not worth acceptance.
(vi) The new government took over on 16.5.2011 and immediately
thereafter, the Government received representations from various private
schools/organizations on 17th/18th May, 2011 to scrap the uniform
education system. As most of these representations were made by the
societies/organisations who had earlier challenged the validity of the Act
2010 and met their waterloo in the hierarchy of the courts, such
representations were, in fact, not even maintainable and, thus could not
have been entertained by the Government.
(vii) Before the first Cabinet meeting of the new Government on
22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books
under the old education system. It shows that there had been a pre-
determined political decision to scrap the Act 2010. The Cabinet on
6
22.5.2011 had taken a decision to do away with the Act 2010 and
brought the Ordinance for that purpose.
(viii) There was no material before the Government on the basis of
which, the decision not to implement the Act 2010 could be taken as
admittedly the Expert Committee had not done any exercise of
reviewing the syllabus and textbooks till then.
(ix) The validity of the said decision was challenged by parents and
teachers and various other organisations before the High Court and
interim orders were passed. It was at that stage that the Bill was
introduced in the House on 7.6.2011 and the Amendment Act was
passed and enforced with retrospective effect i.e. from 22.5.2011, the
date of the decision of the Cabinet in this regard.
(x) The interim orders passed by the High Court were challenged
before this Court and the appeals were disposed of by this court vide
judgment and order dated 14.6.2011, issuing large number of directions
including constitution of the Expert Committee which would find out
ways and means to enforce the common education system.
(xi) The Secretary of School Education Department had filed
affidavits before the High Court as well as before this Court pointing out
that the Amendment Act 2011 was necessary in view of the fact that the
Act 2010 was illegal and unconstitutional. However, the Secretary of
School Education Department was inadvertently made a member of the
Expert Committee by this Court. Though her inclusion in the
Committee was totally unwarranted particularly in view of her stand
taken before the High Court that the Act 2010 was unconstitutional and
illegal.
6
(xii) The Secretary, to the Govt. of Tamil Nadu School Education
Department, who had been entrusted the responsibility to plead on
behalf of the State, herself had approved the textbooks and fixed the
prices for those books of Standards VIIIth, IXth and Xth vide G.O.
dated 9.5.2011.
(xiii) The members of the Expert Committee did not reject the text
books and syllabus in toto, however, pointed out certain discrepancies
therein and asked for rectification/improvements of the same.
(xiv) The High Court as well as this Court upheld the validity of the
Act 2010. Thus, it was not permissible for the legislature to annul the
effect of the said judgments by the Amendment Act 2011, particularly
so far as the Ist and VIth Standards are concerned. The list of approved
textbooks had been published and made known to all concerned. Thus,
the Act 2010 stood completely implemented so far these Standards were
concerned.
(xv) The Statement of Objects and Reasons of the Act 2011 clearly
stipulated that legislature intended to find out a better system of school
education. Thus, the object has been to repeal the Act 2010.
(xvi) The legislature is competent to enact the revalidation Act under
certain circumstances, where the statutory provisions are struck down by
the court, fundamentally altering the conditions on which such a
decision is based, but the legislature cannot enact, as has been enacted
herein, an invalidation Act, rendering a statute nugatory.
(xvii) The School Education Department of Tamil Nadu on
24.2.2011 called for private publishers to come out with the textbooks
based on common education system, and submit for clearance by the
6
Department by 5.4.2011, as taken note of by the High Court in its order
dated 10.6.2011. Thus, in such a fact-situation, it was not permissible
for the State to revert back to the old system at this advanced stage.
(xviii) Most of the other directions given by the High Court on
30.4.2010, stood complied with. The DTERT had been appointed as
Academic Authority as required under Section 29 of the Act 2009, vide
G.O. dated 27.7.2010.
(xix) The material produced by the respondents before this Court
reveal that norms had been made known and the NCF 2005 was also
implemented by issuing Tamil Nadu Curriculum 2009.
(xx) The issue of repugnancy of the Act 2010 with the Act 2009
merely remains an academic issue as most of the discrepancies stood
removed. Even if something remains to be done, it can be cured even
now, however, such a minor issue could not be a good ground for
putting the Act 2010 under suspended animation for an indefinite
period on uncertain terms.
(xxi) Undoubtedly, there had been a few instances of portraying
the personality by the leader of political party earlier in power, i.e.
personal glorification, self publicity and promotion of his own cult and
philosophy, which could build his political image and influence the
young students, particularly, in the books of primary classes. Such
objectionable material, if any, could be deleted, rather than putting the
operation of the Act 2010 in abeyance for indefinite period.
(xxii) As early as in April 2011, textbooks for Xth Standard were
posted in the official website of School Education Department and
many students downloaded the same and started study of the same as
the students, parents and teachers had been under the impression that
6
for Standards II to V and VII to X, common education system would
definitely be implemented from academic year 2011-12. Such pious
hope of so many stakeholders could not be betrayed. Rolling back the
Act 2010 at this belated stage and withdrawal thereof even for Standard
I and VI would be unjust, iniquitous and unfair to all concerned.
(xxiii) The Amendment Act 2011, in fact, has the effect of bringing
back the effect of Section 14 of the Act 2010 which had been declared
ultra vires by the High Court for the reason that the Board could not be
given binding directions by the State Government.
(xxiv) Even if a very few schools could not exercise their choice of
multiple text books, it could not be a ground of scrapping the Act 2010.
Steps should have been taken to remove the discrepancy.
(xxv) Passing the Act 2011, amounts to nullify the effect of the
High Court and this Court’s judgments and such an act simply
tantamounts to subversive of law.
71. In view of the above, the appeals are devoid of any merit.
Facts and circumstances of the case do not present special features
warranting any interference by this Court.
The appeals are accordingly dismissed. The appellants are
directed to enforce the High Court judgment impugned herein within a
period of 10 days from today.
6
……………..
…………J.
(J.M.
PANCHAL)
…………
……………..J.
(DEEPAK
VERMA)
…………
……………..J.
New Delhi, (Dr. B.S.
CHAUHAN)
August 9, 2011
6
