{"id":33748,"date":"2011-08-09T00:00:00","date_gmt":"2011-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-t-nadu-ors-vs-k-shyam-sunder-ors-on-9-august-2011"},"modified":"2018-03-23T20:29:14","modified_gmt":"2018-03-23T14:59:14","slug":"state-of-t-nadu-ors-vs-k-shyam-sunder-ors-on-9-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-t-nadu-ors-vs-k-shyam-sunder-ors-on-9-august-2011","title":{"rendered":"State Of T.Nadu & Ors vs K Shyam Sunder & Ors on 9 August, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of T.Nadu & Ors vs K Shyam Sunder & Ors on 9 August, 2011<\/div>\n
Author: …………J.<\/div>\n
Bench: J.M. Panchal, Deepak Verma, B.S. Chauhan<\/div>\n
                                                                                          REPORTABLE\n\n\n                  IN THE SUPREME COURT OF INDIA\n\n\n                    CIVIL APPELLATE JURISDICTION\n\n\n                    CIVIL APPEAL NOS.6015-6027\/2011\n\n\n\n\n\n State of Tamil Nadu & Ors.                                                                   .....\n\n\nAppellants \n\n\n                                                      Versus\n\n\n K. Shyam Sunder & Ors.                                                               .....Respondents\n\n\n\n\n\n                                    J U D G M E N T \n<\/pre>\n
Dr. B.S. CHAUHAN, J.\n<\/p>\n<\/p>\n
1.         These  appeals  have been  preferred  against the judgment and <\/p>\n
order   dated   18.7.2011   of   the   High   Court   of   Judicature   at   Madras   in <\/p>\n
Writ Petition Nos.12882, 12890, 13019, 13037, 13038, 13227, 13293, <\/p>\n
13296,   13345,   13381,   13390,   13547   of   2011   and   W.P.(M.D.) <\/p>\n
No.6143\/2011 whereby the High Court has struck down Section 3 of <\/p>\n
The Tamil Nadu Uniform System of School Education (Amendment) <\/p>\n
Act,   2011   (hereinafter   called   the   Amendment   Act   2011)   and   issued <\/p>\n
directions to the State Authorities to implement the provisions of The <\/p>\n
Tamil   Nadu   Uniform   System   of   School   Education   Act,   2010 <\/p>\n
(hereinafter   called   the   Act   2010),   i.e.   to   implement   the   common <\/p>\n
syllabus, distribute the textbooks printed under the uniform system of <\/p>\n
education   and   commence   the   classes   on   or   before   22.7.2011.   The <\/p>\n
Contempt   Petitions   have   been   filed   for   non-implementing   the <\/p>\n
directions given by this Court vide order dated 14.6.2011.<\/p>\n
2.     F
\n          ACTS:\n<\/p>\n
\nA.      In   the   State   of   Tamil   Nadu,   there   had   been   different   Boards <\/p>\n
        imparting   basic   education   to   students   upto   10th  standard, <\/p>\n
        namely, State  Board,   Matriculation   Board,  Oriental   Board  and <\/p>\n
        Anglo-Indian   Board.     Each   Board   had   its   own   syllabus   and <\/p>\n
        prescribed   different   types   of   textbooks.   In   order   to   remove <\/p>\n
        disparity   in   standard   of   education   under   different   Boards,   the <\/p>\n
        State   Government   appointed   a   Committee   for   suggesting   a <\/p>\n
        uniform   system   of   school   education.     The   said   Committee <\/p>\n
        submitted its report on 4.7.2007.  Then another Committee was <\/p>\n
        appointed to implement suggestions\/recommendations made by <\/p>\n
        the said Committee.\n<\/p>\n
                                                                                   2<\/span><\/p>\n
B.    During   the   intervening   period,   The   Right   of   Children   to   Free <\/p>\n
      and Compulsory Education Act, 2009 (hereinafter called the Act <\/p>\n
      2009),   enacted   by   the   Parliament,   came   into   force   with   effect <\/p>\n
      from 1.4.2010 providing for free and compulsory education to <\/p>\n
      every   child   of   the   age   of   6   to   14   years   in   a   neighbourhood <\/p>\n
      school   till   completion   of   elementary   education   i.e.   upto   8th <\/p>\n
      standard.     The   Act   2009   provided   that   curriculum   and   the <\/p>\n
      evaluation   procedure   would   be   laid   down   by   an   Academic <\/p>\n
      Authority to be specified by the appropriate State Government, <\/p>\n
      by   issuing   a   notification.   The   said   Academic   Authority   would <\/p>\n
      lay   down   curriculum   and   the   evaluation   procedure   taking   into <\/p>\n
      consideration various factors mentioned under Section 29 of the <\/p>\n
      Act   2009.   Section   34   of   the   Act   2009   also   provided   for   the <\/p>\n
      constitution of a State Advisory Council consisting of maximum <\/p>\n
      15 members.  The members  would be  appointed from amongst <\/p>\n
      persons having knowledge and practical experience in the field <\/p>\n
      of   elementary   education   and   child   development.     The   State <\/p>\n
      Advisory   Council   would   advise   the   State   Government   on <\/p>\n
      implementation of the provisions of the Act 2009 in an effective <\/p>\n
      manner.\n<\/p>\n
                                                                                    3<\/span><\/p>\n
C.    The   Cabinet   of   the   State   of   Tamil   Nadu   took   a   decision   on <\/p>\n
      29.8.2009 that it will implement  the uniform system of school <\/p>\n
      education in all schools in the State, form a Common Board by <\/p>\n
      integrating   the   existing   four   Boards,   and   will   introduce <\/p>\n
      textbooks providing for the uniform syllabus in Standards I and <\/p>\n
      VI in the academic year 2010-11 and in Standards II to V and <\/p>\n
      VII to X in the academic year 2011-12.   In order to give effect <\/p>\n
      to the said Cabinet decision, steps were taken on administrative <\/p>\n
      level   and   thus,   the   Tamil   Nadu   Uniform   System   of   School <\/p>\n
      Education   Ordinance,   2009   was   issued   on   27.11.2009   which <\/p>\n
      was   published   in   the   official   Gazette   on   30.11.2009.     The <\/p>\n
      Ordinance   was   subsequently   converted   into   the   Act   2010   on <\/p>\n
      1.2.2010.  The Act 2010 provided for the State Common Board <\/p>\n
      of School Education   (hereinafter called the Board); imposition <\/p>\n
      of penalties for wilful contravention of the provisions of the Act <\/p>\n
      or   the   Rules   made   thereunder   (Section   11);   offences   by <\/p>\n
      companies in the same regard (Section 12); and it also enabled <\/p>\n
      the State  Government to issue directions  on   policy matters  to <\/p>\n
      the   Board   from   time   to   time   which   would   be   binding   on   the <\/p>\n
      Board (Section 14).\n<\/p>\n
                                                                                 4<\/span><\/p>\n
D.      Section   3   of   the   Act   2010   provided   that   the   Act   would <\/p>\n
        commence:\n<\/p>\n<\/p>\n
 (a)     in Standards I & VI from the academic year 2010-11; and<\/p>\n
 (b)     in Standards II to V and VII to X from the academic year 2011-<\/p>\n
         12.<\/p>\n
Sub-section(2) thereof required every school in the State to follow the <\/p>\n
norms   fixed   by   the   Board   for   giving   instruction   in   each   subject   and <\/p>\n
follow the norms  for conducting examination as may be specified by <\/p>\n
the   Board.     The   Board   approved   the   curriculum   and   textbooks   for <\/p>\n
Standards I and VI  on 22.3.2010 and the books were printed  in view <\/p>\n
of   the   consequential   order   dated   31.3.2010   by   the   Tamil   Nadu <\/p>\n
Textbook Corporation.\n<\/p>\n
\nE.      As   many   as   14   writ   petitions   were   filed   in   the   High   Court   of <\/p>\n
        Madras challenging the validity of various provisions of the Act <\/p>\n
        2010.   A Division Bench of the High Court vide judgment and <\/p>\n
        order dated 30.4.2010 held   that the provisions of Sections 11, <\/p>\n
        12   and   14   were   unconstitutional   and   struck   down   the   same <\/p>\n
        while the Court issued elaborate  directions  for implementation <\/p>\n
        of the common syllabus and the textbooks for Standards I and <\/p>\n
        VI by the academic year 2010-11; and for all other Standards by <\/p>\n
        the academic  year 2011-12 or until the State makes  the norms <\/p>\n
                                                                                        5<\/span><\/p>\n
      and the syllabus and prepares the textbooks in advance for the <\/p>\n
      same.   Further directions were issued by the Court to the State <\/p>\n
      Government   to   bring   the   provisions   of   the   Act   2010   in <\/p>\n
      consonance   with   the   Act   2009   and   notify   the   Academic <\/p>\n
      Authority and the State Advisory Council under the Act 2009. <\/p>\n
      The State was also directed to indicate approved textbooks from <\/p>\n
      which   private   unaided   schools   could   choose   suitable   for   their <\/p>\n
      schools.   The Court further directed the Government to amend <\/p>\n
      the Act to say that the common\/uniform syllabus was restricted <\/p>\n
      to   five   curricular   subjects,   namely,   English,   Tamil, <\/p>\n
      Mathematics,   Science   and   Social   Science   which   the   schools <\/p>\n
      were   bound   to   follow,   but   not   in   respect   of   the   co-curricular <\/p>\n
      subjects.     The   aforesaid   judgment   was   duly   approved   by   this <\/p>\n
      Court vide order dated 10.9.2010 while dismissing large number <\/p>\n
      of SLPs filed against the same by a speaking order.<\/p>\n
F.    In   order   to   implement   the   Act   2010   and   the   judgment   of   the <\/p>\n
      High Court duly approved by this Court, the State  Authorities <\/p>\n
      referred   the   enumerated   components   of   the   curriculum   in <\/p>\n
      respect of Classes II to V and VII  to X to an Expert Committee <\/p>\n
      for   its   opinion.   The   curriculum   and   syllabus   prepared   for <\/p>\n
                                                                                   6<\/span><\/p>\n
      uniform system of school education as well as the textbooks for <\/p>\n
      Classes   II   to   V   and   VII   to   X   for   uniform   system   of   school <\/p>\n
      education   in   Government   schools   and   Government   aided <\/p>\n
      schools were  approved by the Board.\n<\/p>\n
\nG.    However,   there   was   a   change   of   State   Government   following <\/p>\n
      the general elections of the State Assembly, on 16.5.2011. After <\/p>\n
      completing   the   formalities,   the   Government   amended   the   Act <\/p>\n
      2010   by   the   Amendment   Act   2011,   by   which   it   substituted <\/p>\n
      Section  3 by a new  Section    providing  that the schools would <\/p>\n
      follow the common syllabus as may be specified by the Board <\/p>\n
      for each subject in Standards I to X from such academic year as <\/p>\n
      may be notified by the Government in the official Gazette.  The <\/p>\n
      Government may specify different academic years for different <\/p>\n
      Standards.   The  amendment  also omitted   Sections 11, 12 and <\/p>\n
      14   from   the   Act   2010   since   those   Sections   had   been   struck <\/p>\n
      down by the High Court as unconstitutional.\n<\/p>\n
\nH.    New   academic  session   was   to  commence   on   1.6.2011  and   the <\/p>\n
      Amendment   Act   2011   came   into   force   on   7.6.2011.     A   large <\/p>\n
      number   of   writ   petitions   were   filed   challenging   the   said <\/p>\n
      amendment.   A   Division   Bench   of   the   High   Court   vide   order <\/p>\n
                                                                                   7<\/span><\/p>\n
      dated   10.6.2011   stayed   the   operation   of   the   Amendment   Act <\/p>\n
      2011,   but   gave   liberty   to   the   State   Government   to   conduct   a <\/p>\n
      detailed study of the common syllabus and common  textbooks <\/p>\n
      and   further   clarified   that   the   State   Government   would   be <\/p>\n
      entitled   to   add,   modify,   substitute   or   alter   any   chapter, <\/p>\n
      paragraph or portion of the textbooks etc. and further permitting <\/p>\n
      the managements of private schools to submit their list of books <\/p>\n
      for approval to  the Government.\n<\/p>\n
\nI.    The   aforesaid   interim   order   passed   by   the   High   Court   on <\/p>\n
      10.6.2011   was   challenged   before   this   Court     and   all   those <\/p>\n
      matters   stood   disposed   of   vide   judgment   and   order   dated <\/p>\n
      14.6.2011 by which this Court modified the said interim order <\/p>\n
      inter-alia,   directing   constitution   of   a   committee   of   experts, <\/p>\n
      which the State Government  had already undertaken to appoint, <\/p>\n
      to   examine   ways   and   means   for   implementing   the   uniform <\/p>\n
      education   system,   common   syllabus,   and   the   textbooks   which <\/p>\n
      were to be provided for Standards II to V and VII to X under the <\/p>\n
      Act   2010.     It     requested   the   High   Court   to   determine   if   such <\/p>\n
      textbooks   and   the   amended   syllabus   would   be   applicable   to <\/p>\n
                                                                                    8<\/span><\/p>\n
       Standards II to V and VII to X   keeping in view the provisions <\/p>\n
       of  the amended Act.\n<\/p>\n
\nJ.     In   pursuance   of   the   said   order,   an   Expert   Committee   was <\/p>\n
       constituted and after having several meetings, a joint report was <\/p>\n
       submitted to the High Court.  The High Court after considering <\/p>\n
       the said report, vide judgment and order dated 18.7.2011, found <\/p>\n
       fault with the report of the Expert Committee and struck down <\/p>\n
       Section   3   of   Amendment   Act   2011   with   a   direction   that   the <\/p>\n
       State   shall   distribute   the   textbooks   printed   under   the   uniform <\/p>\n
       system of education to enable the teachers to commence classes, <\/p>\n
       and complete distribution of textbooks on or before 22.7.2011.   <\/p>\n
                    Hence, these appeals.\n<\/p>\n
RIVAL SUBMISSSIONS:\n<\/p>\n<\/p>\n
3.        Shri  P.P. Rao, Shri  C.A. Sundaram, Dr. Rajeev Dhavan, Dr. <\/p>\n
Abhishek   M.   Singhvi,   Sr.   Advocates,   Shri   A.   Navaneetha   Krishnan, <\/p>\n
learned   Advocate   General   and   Shri   Guru   Krishna   Kumar,   learned <\/p>\n
Additional   Advocate  General  for  the   State   of Tamil   Nadu,  appearing <\/p>\n
for the   appellants, have submitted that the High Court vide its earlier <\/p>\n
                                                                                 9<\/span><\/p>\n
judgment   dated   30.4.2010   had   issued   directions   to   the   State <\/p>\n
Government to amend the Act 2010 as certain provisions thereof had to <\/p>\n
be   brought   in   conformity   with   the   Act   2009   and   the   State   had   to <\/p>\n
constitute   the   Board   and   designate   the   Academic   Authority   and   the <\/p>\n
State Advisory Council. In view thereof, it was necessary to bring the <\/p>\n
Amendment   Act   2011.   Thus,   basically   it   was   in   consonance   and   in <\/p>\n
conformity   with   the   judgment   dated   30.4.2010   which   has   duly   been <\/p>\n
approved by this Court. The   High Court in its earlier judgment itself <\/p>\n
gave   liberty   to   the   State   to   implement   the   common   syllabus   and <\/p>\n
distribute text books under the Act 2010 from academic year 2011-12 <\/p>\n
or with any future date after the norms were made known by the State <\/p>\n
Authorities so far as the students of Standards II to V and VII to X are <\/p>\n
concerned.  Therefore, in view of the same, the High Court committed <\/p>\n
an   error   holding   that   the   Amendment   Act   2011   tantamounts   to <\/p>\n
repealing the Act 2010. The High Court itself has accepted the settled <\/p>\n
legal proposition that the question of malafide or colourable exercise of <\/p>\n
power cannot be alleged against the legislature, but still it recorded the <\/p>\n
finding   that   the   Amendment   Act   2011   was   a   product   of   arbitrary <\/p>\n
exercise of power. The authorities  had to ensure compliance with the <\/p>\n
National Curriculum Framework 2005   (hereinafter called NCF 2005) <\/p>\n
                                                                                   1<\/span><\/p>\n
prepared   by   the   National   Council   of   Educational   Research   and <\/p>\n
Training   (hereinafter   called   NCERT),   which   had   laid   down   a   large <\/p>\n
number of guidelines for preparing the syllabus and curriculum for the <\/p>\n
children.     The   Government   of   India   issued   Notification   dated <\/p>\n
31.3.2010,   published   in   the   Official   Gazette   of   India     on   5.4.2010, <\/p>\n
recognizing   the NCERT as the Academic Authority to lay down the <\/p>\n
curriculum and evaluation  procedure for elementary  education and to <\/p>\n
develop a framework on national curriculum. In consequence thereof, a <\/p>\n
Government Order dated 31.5.2010 was also issued by the Ministry of <\/p>\n
Human   Resources   Development   to   the   effect   that   in   view   of   the <\/p>\n
statutory provisions of the Act 2009, which provided that the Central <\/p>\n
Government   shall   develop   a   framework   on   national   curriculum   with <\/p>\n
the help of Academic Authority specified under Section 29 thereof,  the <\/p>\n
NCF 2005 would be the NCF till such time as the Central Government <\/p>\n
requires   to   develop   a   new   framework.   After   the   order   of   this   Court <\/p>\n
dated   14.6.2011,   the   Expert   Committee     appointed   by   the   State   had <\/p>\n
gone through the syllabus and the text books already printed and after <\/p>\n
having various meetings, came to the conclusion that the same required <\/p>\n
thorough   revision   and   therefore,   submitted   a   report   that   it   was   not <\/p>\n
possible to implement the Act 2010 in the academic year 2011-12.  <\/p>\n
                                                                                    1<\/span><\/p>\n
                      The   Advocate   General   of   Tamil   Nadu   had   given <\/p>\n
assurance to the High Court that under all circumstances the Act 2010 <\/p>\n
will be implemented in the next academic year, i.e. 2012-13. However, <\/p>\n
the Court did not consider the same at all.             It   falls   within   the <\/p>\n
exclusive domain of the legislature\/ Government as to from which date <\/p>\n
it would enforce a Statute. The court cannot even issue a mandamus to <\/p>\n
the   legislature   to   bring   a   particular   Act   into   force.   Therefore,   the <\/p>\n
question of striking down the Amendment Act 2011 on the ground that <\/p>\n
implementation   of   the   Act   2010   to   be   deferred   indefinitely   is   not   in <\/p>\n
accordance with the settled legal propositions. The State had to appoint <\/p>\n
various   authorities   and   notify   the   same   as   required   under   various <\/p>\n
statutes.   Once   the   provision   stands   amended   and   the   amending <\/p>\n
provisions   are   struck   down   by   the   Court,   the   obliterated   statutory <\/p>\n
provisions would not revive automatically unless the provisions of the <\/p>\n
amending   statutes   is   held   to   be   invalid   for   want   of   legislative <\/p>\n
competence. The appeals deserve to be allowed and the judgment and <\/p>\n
order of the High Court impugned are liable to be set aside. <\/p>\n
4.         Per   contra,   Shri   T.R.   Andhyarujina,   Shri   Basava   Prabhu   S. <\/p>\n
Patil,   Shri   R.   Viduthalai,   Shri   Dhruv   Mehta,   Shri   M.N.   Krishnamani <\/p>\n
and   Shri   Ravi   Verma   Kumar,   Sr.   Advocates     and   Shri   Prashant <\/p>\n
                                                                                      1<\/span><\/p>\n
Bhushan   and   Shri   N.G.R.   Prasad,   Advocates   appearing   for   the <\/p>\n
respondents  have submitted that the Amendment Act is a political fall <\/p>\n
out due to change of  Government. The new Government was sworn in <\/p>\n
on 16.5.2011. The Cabinet on 22.5.2011 decided not to implement the <\/p>\n
uniform   education   system   which   was   purely   a   political   decision   as <\/p>\n
there was no material before the Cabinet on the basis of which it could <\/p>\n
be decided that implementation of the Act 2010 was not possible. The <\/p>\n
academic   session   which   had   to   start   on   1.6.2011   was   postponed <\/p>\n
extending   the   summer   vacation   upto   15.6.2011   vide   order   dated <\/p>\n
25.5.2011. The decision of the Cabinet was challenged before the High <\/p>\n
Court by filing writ petitions on 1.6.2011 and during the pendency of <\/p>\n
the   said   cases,   the   Amendment   Act   2011   was   passed   hurriedly,   that <\/p>\n
was   a   totally   arbitrary   and   unwarranted   exercise   underlined   by   sheer <\/p>\n
political   motives.   The   Amendment   Act   2011   was   promulgated   on <\/p>\n
7.6.2011 itself with retrospective effect i.e. with effect from 22.5.2011, <\/p>\n
the  date  of  decision  of  the  Cabinet,   not  to  implement  the  Act     2010. <\/p>\n
The Amendment Act 2011 has taken away the effect of the judgments <\/p>\n
of the High Court dated 30.4.2010 and of this Court dated 10.9.2010, <\/p>\n
wherein  it had been held that for Standards I & VI,  the Act 2010 will <\/p>\n
be implemented from academic year 2010-11 and for others from the <\/p>\n
                                                                                  1<\/span><\/p>\n
academic year 2011-12. Under the said judgment, the implementation <\/p>\n
of Act 2010 for Standards I & VI as directed by Court had also been <\/p>\n
taken away by the Amendment Act 2011. The mandate of the statute <\/p>\n
that   for   Standards   II   to   V   and   VII   to   X,   the   Act   2010   will   be <\/p>\n
implemented   from   academic   year   2011-12,   stood   completely   wiped <\/p>\n
out.     Not   fixing   any   future   date   for   implementation   of   the   Act   2010 <\/p>\n
while   bringing   the   Amendment   Act   2011,   the   legislature   has <\/p>\n
substantially   repealed   the   Act   2010.   The   Statement   of   Objects   and <\/p>\n
Reasons   are a preface  to the intention of the legislature  and provide <\/p>\n
guidelines for interpreting the statutory provisions.  The same provides <\/p>\n
that   the   authorities   have   taken   a   decision   to   scrap   the   uniform <\/p>\n
education system adopted under the Act 2010 and the State will search <\/p>\n
for a better alternative.   The legislature is not competent to overrule a <\/p>\n
judicial   decision   of   a   competent   court   or   take   away   its   effect <\/p>\n
completely as it amounts to trenching upon the judicial powers of the <\/p>\n
Court. The Amendment Act 2011 is liable to be struck down solely on <\/p>\n
this  ground.\n<\/p>\n<\/p>\n
      The   law   does   not   permit   change   of   policies   merely   because   of <\/p>\n
another political party with a different political philosophy coming in <\/p>\n
power, as it is the decision of the Government, the State, an Authority <\/p>\n
                                                                                      1<\/span><\/p>\n
under Article 12 of the Constitution, and not of a particular person or a <\/p>\n
party, which is responsible for an enactment and implementation of all <\/p>\n
laws.   The   High   Court   rightly   came   to   the   conclusion   that   the   Expert <\/p>\n
Committee   was   not   unanimous   on   every   issue   regarding   the <\/p>\n
curriculum,   syllabus   and   quality   of   text   books.   Even   if   some <\/p>\n
corrections   were   required,   it   could   have   been   done   easily   by   issuing <\/p>\n
administrative orders.  The authorities defined under the Act 2009 had <\/p>\n
already been appointed, and even for giving effect to the judgment  of <\/p>\n
the   High   Court   dated   30.4.2010,   it   was   not   necessary   to   bring   about <\/p>\n
any fresh legislation.  In case the amending statute is held to be invalid <\/p>\n
being   violative   of   any   of   the   fundamental   rights   or   arbitrary,   the <\/p>\n
repealed provisions would automatically revive. Conferring unfettered <\/p>\n
powers   on   the   executive,   without   laying   down   any   criterion   or <\/p>\n
guidelines   to   enforce   the   Act   2010,   tantamounts   to   abdication   of   its <\/p>\n
legislative powers. Non-availability of choice of multiple text books for <\/p>\n
a very few schools could not be a ground for scrapping the Act 2010. <\/p>\n
The appeals lack merit and are liable to be dismissed. <\/p>\n
5.         We   have   considered   the   rival   submissions   made   by   learned <\/p>\n
counsel for the parties and perused the record. <\/p>\n
                                                                                     1<\/span><\/p>\n
6.         In post-Constitutional era, an attempt has been made to create <\/p>\n
an  egalitarian   society   removing disparity  amongst  individuals,   and  in <\/p>\n
order to achieve that purpose, education is one of the most important <\/p>\n
and   effective   means.   After   independence,   there   has   been   an   earnest <\/p>\n
effort   to   bring   education   out   of   commercialism\/mercantilism.     In   the <\/p>\n
year 1951, the Secondary  School Commission  was constituted  as  per <\/p>\n
the   recommendation   of  Central   Advisory   Board   of  Education   and   an <\/p>\n
idea   was   mooted   by   the   Government   to   prepare   textbooks   and   a <\/p>\n
common   syllabus   in   education   for   all   students.     In   1964-1966,   the <\/p>\n
report   on   National   Education   Policy   was   submitted   by   the   Kothari <\/p>\n
Commission   providing   for   common   schools   suggesting   that   public <\/p>\n
funded schools be opened for all children irrespective of caste, creed, <\/p>\n
community,  religion,  economic conditions or social  status.  Quality  of <\/p>\n
education   imparted   to   a   child   should   not   depend   on   wealth   or   class. <\/p>\n
Tuition fee should not be charged from any child, as it would meet the <\/p>\n
expectations of parents with average income and they would be able to <\/p>\n
send   their   children   to   such   schools.   The   recommendations   by   the <\/p>\n
Kothari   Commission   were   accepted   and   reiterated   by   the   Yashpal <\/p>\n
Committee   in   the   year   1991.   It   was   in   this   backdrop   that   in   Tamil <\/p>\n
                                                                                     1<\/span><\/p>\n
Nadu, there has been a demand from the public at large to bring about a <\/p>\n
common education system  for all children.\n<\/p>\n<\/p>\n
                      In   the   year   2006,   in   view   of   the   struggle   and <\/p>\n
campaign   and   constant   public   pressure,   the   Committee   under   the <\/p>\n
Chairmanship   of   Dr.   S.   Muthukumaran,   former   Vice-Chancellor   of <\/p>\n
Bharathidasan   University   was   appointed   which   recommended   to <\/p>\n
introduce   a     common   education   system   after   abolishing   the   four <\/p>\n
different Boards then in existence in the State. Subsequent thereto, the <\/p>\n
Committee constituted of Shri M.P. Vijayakumar, IAS was appointed <\/p>\n
to look into the recommendations of  Dr. S. Muthukumaran Committee <\/p>\n
which   also   submitted   its   recommendations   to   the   Government   to <\/p>\n
implement a  common education system upto Xth standard. <\/p>\n
7.        The right to education is a Fundamental Right under Article 21-<\/p>\n
A inserted by  the 86th amendment of the Constitution. Even before the <\/p>\n
said   amendment,   this   Court   has   treated   the   right   to   education   as   a <\/p>\n
fundamental right. (Vide: Miss Mohini Jain   v.  State of Karnataka <\/p>\n
& Ors.,  AIR<\/a> 1992 SC 1858;  Unni Krishnan, J.P. & Ors. etc. etc. v. <\/p>\n
State of A.P & Ors. etc. etc. ,  AIR 1993 SC 2178; and  T.M.A. Pai <\/p>\n
Foundation   &   Ors.   v.   State   of   Karnataka   &   Ors.,<\/a>  (2002)   8   SCC <\/p>\n
481).\n<\/p>\n
                                                                                    1<\/span><\/p>\n
        There has been a campaign that right to education under Article <\/p>\n
21-A of our Constitution be read in conformity with Articles 14 and 15 <\/p>\n
of  the Constitution  and  there  must  be  no discrimination  in quality   of <\/p>\n
education.   Thus,   a   common   syllabus   and   a   common   curriculum   is <\/p>\n
required. The right of a child should not be restricted only to free and <\/p>\n
compulsory   education,   but   should   be   extended   to   have   quality <\/p>\n
education without any discrimination on the ground of their economic, <\/p>\n
social and cultural background.\n<\/p>\n<\/p>\n
        Arguments   of   the   propagators   of   this   movement   draw   support <\/p>\n
from   the   judgment   of   U.S.   Supreme   Court   in   the   case   of  Brown   v. <\/p>\n
Board   of   Education,  347   U.S.   483   (1954)   over-ruling   its   earlier <\/p>\n
judgment   in  Plessy   v.   Ferguson,  163   U.S.   537   (1896),   where   it   has <\/p>\n
been   held   that   “separate   education   facilities   are   inherently   unequal” <\/p>\n
and thus, violate the doctrine of equality.\n<\/p>\n<\/p>\n
        The   propagators   of   this   campaign   canvassed   that   uniform <\/p>\n
education system would achieve the code of common culture, removal <\/p>\n
of disparity, depletion of   discriminatory values in human relations. It <\/p>\n
would   enhance   the   virtues   and   improve   the   quality   of   human   life, <\/p>\n
elevate   the   thoughts   which   advance   our   constitutional   philosophy   of <\/p>\n
equal   society.   In   future,   it   may   prove   to   be   a   basic   preparation   for <\/p>\n
                                                                                        1<\/span><\/p>\n
 uniform civil code as it may help in  diminishing opportunities to those <\/p>\n
 who foment fanatic and fissiparous tendencies. <\/p>\n
                     In  Rohit   Singhal   &  Ors.   v.   Principal,   Jawahar   N. <\/p>\n
Vidyalaya & Ors., AIR<\/a> 2003 SC 2088, this Court expressed its great <\/p>\n
concern regarding education for children observing as under:-<\/p>\n
                       “Children are not only the future citizens  <\/p>\n
            but also the future of the earth. Elders in general,  <\/p>\n
            and   parents   and   teachers   in   particular,   owe   a  <\/p>\n
            responsibility for taking care of the well-being and  <\/p>\n
            welfare of the children. The world shall be a better  <\/p>\n
            or worse place to live according to how we treat  <\/p>\n
            the   children   today.  Education   is   an   investment  <\/p>\n
            made by the nation in its children for harvesting  <\/p>\n
            a future crop of responsible adults productive of  <\/p>\n
            a well functioning Society. However, children are  <\/p>\n
            vulnerable.   They   need   to   be   valued,   nurtured,  <\/p>\n
            caressed and protected.” (Emphasis added)<\/p>\n
 8.        In  State of Orissa v. Mamta Mohanty,<\/a> (2011) 3 SCC 436, <\/p>\n
 this Court emphasised  on the importance of education observing that <\/p>\n
 education connotes the whole course of scholastic instruction which a <\/p>\n
 person   has   received.   Education   connotes   the   process   of   training   and <\/p>\n
 developing   the   knowledge,   skill,   mind   and   character   of   students   by <\/p>\n
 formal schooling.   The Court further relied upon the earlier judgment <\/p>\n
 in Osmania University Teachers’ Assn. v. State of A.P. & Anr., AIR <\/p>\n
 1987 SC 2034, wherein it has been held as under:\n<\/p>\n
                                                                                  1<\/span><\/p>\n
                              “….Democracy   depends   for   its   very   life  <\/p>\n
      on a high standard of general, vocational and professional  <\/p>\n
      education.   Dissemination   of   learning   with   search   for   new  <\/p>\n
      knowledge with discipline all round must be maintained at  <\/p>\n
      all costs.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
             The case   at hand is to be proceeded with keeping this ethical <\/p>\n
 backdrop in mind.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
9.            While   deciding   the   case   earlier,   the   Division   Bench   of   the <\/p>\n
Madras High Court on 30.4.2010 held that:\n<\/p>\n<\/p>\n
      (i)          The provisions of Sections 11, 12 and 14 of the Act <\/p>\n
      were   ultra   vires   and   unconstitutional,   and   thus   struck   them <\/p>\n
      down.     However,   considering   the   problems   of   the   State <\/p>\n
      authorities, the Division Bench concluded that the State was <\/p>\n
      competent to bring in an education system common to all in <\/p>\n
      the interest of social justice and quality education.  The order <\/p>\n
      further read as under:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                         “Implementation  of the  syllabus  and  text <\/p>\n
               books is postponed till the academic year 2011-12 <\/p>\n
               or until the State makes known the norms and the <\/p>\n
               syllabus and prepares the text books in advance.” <\/p><\/blockquote>\n
\n<\/blockquote>\n
                         (Emphasis added)<\/p>\n<\/blockquote>\n
       (ii)  In the meantime the State would bring the provision of <\/p>\n
      the Act 2010 in line with the Central Act, e.g. the State shall <\/p>\n
      specify   by   Notification   the   Academic   Authority   and   the <\/p>\n
      State Advisory Council.  The Board shall also indicate what <\/p>\n
      the approved books are.  The State shall by amending the <\/p>\n
                                                                                      2<\/span><\/p>\n
       section or by introducing a schedule to the Act,  indicate <\/p>\n
       that the syllabus  is restricted to curricular subjects   and all <\/p>\n
       schools are bound to follow the common  syllabus  only for <\/p>\n
       the curricular subjects and not for the co-curricular subjects. <\/p>\n
       The   schools   may   choose   from   multiple   text   books  vis. <\/p>\n
       Government produced text books which are prescribed text <\/p>\n
       books   and   the   Government   approved   text   books   in   all <\/p>\n
       subjects both curricular and co-curricular.   <\/p>\n<\/blockquote>\n
       (iii)        The   schools   shall   follow   the   norms   as   far   as   they <\/p>\n
       are practicable. There can be no Board examination upto the <\/p>\n
       level of elementary education but the assessment norms may <\/p>\n
       be specified. Norms shall be fixed by the Board. The State <\/p>\n
       may   make   it   clear   whether   this   Board   will   also   be   the <\/p>\n
       Academic   Authority   under   the   Central   Act.   However, <\/p>\n
       considering the request of the learned Additional Advocate <\/p>\n
       General   just   after   pronouncing   the   judgment   the   Court <\/p>\n
       accepted that Section 3 as modified by the Court would be <\/p>\n
       implemented   for   Standards   I   and   VI   from   academic   year <\/p>\n
       2010-11,   provided   the   Board   fixed   the   norms   before <\/p>\n
       15.5.2010.\n<\/p><\/blockquote>\n
<\/blockquote>\n
              The said judgment has duly been approved by this Court <\/p>\n
       by a speaking order dated 10.9.2010.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
10.             Decision   of   the   Cabinet   dated   22.5.2011,   to   postpone   the <\/p>\n
enforcement   of   the   Act   2010   was   challenged   through   various   writ <\/p>\n
petitions. Meanwhile, the government issued an Ordinance which was <\/p>\n
                                                                                            2<\/span><\/p>\n
converted to Act 2011 passed on 7.6.2011 with retrospective effect i.e. <\/p>\n
22.5.2011, the date on which the decision was taken by the Cabinet of <\/p>\n
the   State   in   this   regard.   Accordingly,   writ   petitions   were   amended <\/p>\n
challenging   the   validity   of   the   Amendment   Act   2011.   Interim   orders <\/p>\n
passed by the High Court therein were challenged before this Court. <\/p>\n
11.              This   Court   in  its   judgment   and   order   dated   14.6.2011  inter-<\/p>\n
alia, directed as under:\n<\/p>\n<\/p>\n
       (i)                 The  academic  Scheme in  force   for  the  Academic  year <\/p>\n
                2010-11 for Standards I and VI shall continue to be in force in <\/p>\n
                all respects for the Academic year 2011-12 as well;<\/p>\n<\/blockquote>\n
        (ii)       Each   text   book   and   to   what   extent   the   amended   syllabus <\/p>\n
                   will   be   applicable   to   every   course   shall   be   finally <\/p>\n
                   determined by the High Court keeping in view the amended <\/p>\n
                   provisions of the Act and its impact; and <\/p>\n<\/blockquote>\n
       (iii)                         We hereby direct the State to appoint a Committee, <\/p>\n
                  which   it   had   already   undertaken   to   appoint   primarily   to <\/p>\n
                  examine   ways   and   means   of   implementing   the   uniform <\/p>\n
                  education   system   to   the   classes   (II   to   V   and   VII     to   X)   in <\/p>\n
                  question; common syllabus and the text books which are to <\/p>\n
                  be provided for the purpose.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
12.              The   aforesaid   directions   make   it   clear   that   the   issues   with <\/p>\n
regard   to   syllabus   and   text   books   were   to   be   determined   after <\/p>\n
considering the report of the Expert Committee appointed by the State <\/p>\n
to   examine   ways   and   means   of   implementing   the   uniform <\/p>\n
education   system  in   Standards   (II   to   V   and   VII     to   X)   in   question, <\/p>\n
                                                                                                 2<\/span><\/p>\n
common syllabus and the text books which are to be provided for the <\/p>\n
purpose. Thus, it was the Expert Committee which had been assigned <\/p>\n
the   role   to   find   out   ways   and   means   to   implement   the   common <\/p>\n
education policy etc. <\/p>\n
13.           The  High Court  in the  impugned judgment  while examining <\/p>\n
the   validity   of   the   amended   provisions   took   note   of   settled   legal <\/p>\n
propositions as under:\n<\/p>\n<\/p>\n
              “As there is no challenge  to the Amending Act <\/p>\n
              on   the   ground   of   legislative   incompetence,   we <\/p>\n
              are   not   required   to   examine   the   effect   of   the <\/p>\n
              Amending  Act, on such grounds or to examine <\/p>\n
              whether   the   Amending   Act   is   a   colourable <\/p>\n
              legislation on such aspects. Therefore, we have to <\/p>\n
              examine the matters solely based on the directions <\/p>\n
              issued by the Hon’ble Supreme Court in its order <\/p>\n
              dated 14.6.2011. The Amending Act which has the <\/p>\n
              effect of repeal of the Parent Act under the guise of <\/p>\n
              postponement of its implementation,  when in fact <\/p>\n
              Parent Act has already been implemented, though <\/p>\n
              partially,   the   Amending   Act   has   to   be   held   to   be <\/p>\n
              arbitrary piece of legislation which does not satisfy <\/p>\n
              the  touchstone  of Article 14 of the Constitution of <\/p>\n
              India.”   (Emphasis added)<\/p>\n<\/blockquote>\n
              14.       The   High   Court   after   examining   the   validity   of   the <\/p>\n
Amended Act held:\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (I)               The   Committee   so   constituted   may   not   be <\/p>\n
                         justified   in   submitting   the   report   stating   that <\/p>\n
                         the   entire   uniform   system   of   education   be <\/p>\n
                                                                                         2<\/span><\/p>\n
         scrapped  and the text books already provided <\/p>\n
         for be discarded.\n<\/p><\/blockquote>\n
<\/blockquote>\n
(II)     The Expert Committee  has mis-directed  itself <\/p>\n
         as   it   ought   to   have   proceeded   primarily   to <\/p>\n
         examine the ways and means of implementing <\/p>\n
         the uniform system of education, curiously the <\/p>\n
         Committee,   in   its   final   report   concluded   that <\/p>\n
         no   text   book   can     be   used   for   the   academic <\/p>\n
         year 2011-12.\n<\/p>\n
(III)    The   Committee   members   were   not   of   the <\/p>\n
         unanimous   opinion   that   the   uniform   syllabus <\/p>\n
         and common  text books have to be discarded <\/p>\n
         from   the   current   year.   Each   member   has <\/p>\n
         pointed out  certain  defects  and  recommended <\/p>\n
         for certain changes and additions.\n<\/p>\n
\n(IV)       In the order dated 10.6.2011, the High Court <\/p>\n
         directed   the   Government   to   notify   the <\/p>\n
         approved text books after conducting the study <\/p>\n
         with   a   view   to   comply   with   the   direction <\/p>\n
         issued earlier on 30.4.2010. This direction was <\/p>\n
         issued to enable the schools to choose from the <\/p>\n
         multiple   text   books.     However,   these   orders <\/p>\n
         and   directions   have   been   discarded   by   the <\/p>\n
         State.\n<\/p>\n
\n(V)      The State has  exceeded its power in bringing <\/p>\n
         the   Amending   Act   to   postpone   an   enactment <\/p>\n
         which has already come into force. As there is <\/p>\n
                                                                         2<\/span><\/p>\n
                a   sudden   change   in   the   policy   of   the <\/p>\n
                Government from its predecessor immediately <\/p>\n
                after coming into power that the Court had to <\/p>\n
                see   the   impact   of   the   amendment, <\/p>\n
                notwithstanding   the   competence   of   the <\/p>\n
                legislature to pass an Amendment Act.\n<\/p>\n
\n(VI)            If the law was passed only ostensibly but was <\/p>\n
                in truth and substance, one for accomplishing <\/p>\n
                an   unauthorized   object,   the   court   would   be <\/p>\n
                entitled to lift the veil and judicially review the <\/p>\n
                case.\n<\/p>\n
\n(VII)       The   State   has   sought   to   achieve   indirectly   what <\/p>\n
could   not   be   achieved   directly   as   it   was   prevented   from <\/p>\n
doing   so   in   view   of   the   judgment   of   the   Division   Bench <\/p>\n
which upheld the validity of the Parent Act 2010.<\/p>\n
(VIII) The   Amendment   Act   2011   is   an   arbitrary   piece   of <\/p>\n
         legislation   and   violative   of   Article   14   of   the <\/p>\n
         Constitution   and   the   Amendment   Act   2011   was <\/p>\n
         merely   a   pretence   to   do   away   with   the   uniform <\/p>\n
         system   of   education   under   the   guise   of   putting   on <\/p>\n
         hold the implementation of the Parent Act, which the <\/p>\n
         State was not  empowered to do so.\n<\/p>\n
\n (IX)     If   the   impugned   Amending   Act   has   to   be   given <\/p>\n
          effect to, it would result in unsettling various issues <\/p>\n
          and   the   larger   interest   of   children   would   be <\/p>\n
          jeopardized.\n<\/p>\n
                                                                               2<\/span><\/p>\n
15.        There   are   claims   and   counter   claims   on   each   factual   aspect <\/p>\n
and   the   High   Court   has   dealt   with   each   issue   elaborately,   in   our <\/p>\n
opinion,   to   an     unwarranted   extent.     However,   before   we   proceed <\/p>\n
further, it may be necessary to examine the legal issues:-<\/p>\n
I.       CHANGE   OF   POLICY   WITH   THE   CHANGE   OF \n\n         GOVERNMENT:\n\n\n\n<\/pre>\n
16.       The Government has to rise above the nexus of vested interests <\/p>\n
and   nepotism   and   eschew   window-dressing.   “The   principles   of <\/p>\n
governance have to be tested on the touchstone of justice, equity, fair <\/p>\n
play and if a decision is not based on justice, equity and fair play and <\/p>\n
has taken into consideration other matters, though on the face of it, the <\/p>\n
decision may look legitimate but as a matter of fact, the reasons are not <\/p>\n
based on values but to achieve popular accolade, that decision cannot be <\/p>\n
allowed   to   operate”.   (Vide:  Onkar   Lal   Bajaj   etc.   etc.   v.   Union   of <\/p>\n
India & Anr. etc. etc., AIR 2003 SC 2562).\n<\/p>\n<\/p>\n
17.       In  State of Karnataka & Anr. v. All India Manufacturers <\/p>\n
Organisation & Ors.,  AIR<\/a> 2006 SC 1846, this Court examined under <\/p>\n
what circumstances the government should revoke a decision taken by <\/p>\n
an   earlier   Government.   The   Court   held   that   an   instrumentality   of   the <\/p>\n
State cannot have a case to plead contrary from that of the State and the <\/p>\n
policy   in   respect   of   a   particular   project   adopted   by   the   State <\/p>\n
                                                                                    2<\/span><\/p>\n
Government should not be changed with the change of the government. <\/p>\n
The Court further held as under:-\n<\/p>\n<\/p>\n
                  “It is trite law that when one of the contracting <\/p>\n
            parties is State within the meaning of Article 12 of <\/p>\n
            the   Constitution,   it   does   not   cease   to   enjoy   the <\/p>\n
            character of “State” and, therefore, it is subjected to <\/p>\n
            all   the   obligations   that   “State”   has   under   the <\/p>\n
            Constitution. When the State’s acts of omission or <\/p>\n
            commission             are         tainted         with         extreme <\/p>\n
            arbitrariness  and with  mala  fides,   it  is  certainly <\/p>\n
            subject   to   interference   by   the   Constitutional <\/p>\n
            Courts.”  (Emphasis added)<\/p>\n<\/blockquote>\n
18.        While deciding the said case, reliance had been placed by the <\/p>\n
Court on its earlier judgments in  State of U.P. & Anr. v. Johri Mal, <\/p>\n
AIR<\/a> 2004 SC 3800; and State of Haryana v. State of Punjab & Anr., <\/p>\n
AIR   2002   SC   685.   In   the   former,   this   Court   held   that   the   panel   of <\/p>\n
District Government Counsel should not be changed only on the ground <\/p>\n
that the panel had been prepared by the earlier Government. In the latter <\/p>\n
case,   while   dealing   with   the   river   water-sharing   dispute   between   two <\/p>\n
States, the Court observed thus:\n<\/p>\n<\/p>\n
            ” ………in the matter of governance of a State or in <\/p>\n
            the   matter   of   execution   of   a   decision   taken   by   a <\/p>\n
            previous   Government,   on   the   basis   of   a   consensus <\/p>\n
            arrived   at,   which   does   not   involve   any   political <\/p>\n
            philosophy,   the   succeeding   Government   must   be <\/p>\n
            held   duty-bound   to   continue   and   carry   on   the <\/p>\n
            unfinished   job   rather   than   putting   a   stop   to   the <\/p>\n
            same.”\n<\/p><\/blockquote>\n
\n
                                                                                        2<\/span><\/p>\n<\/blockquote>\n
19.       In  M.I.   Builders   Pvt.   Ltd.   v.   V.   Radhey   Shyam   Sahu   & <\/p>\n
Ors., AIR<\/a> 1999 SC 2468, while dealing with a similar issue, this Court <\/p>\n
held   that   Mahapalika   being   a   continuing   body   can   be   estopped   from <\/p>\n
changing its stand in a given case, but where, after holding enquiry, it <\/p>\n
came to the conclusion that action was not in conformity with law, there <\/p>\n
cannot be estoppel against the Mahapalika.\n<\/p>\n<\/p>\n
20.       Thus, it is clear from the above, that unless it is found that act <\/p>\n
done by the authority earlier in existence is either contrary to statutory <\/p>\n
provisions,   is   unreasonable,   or   is   against   public   interest,   the   State <\/p>\n
should not change its stand merely because the other political party has <\/p>\n
come into power. Political agenda of an individual or a political party <\/p>\n
should not be subversive of rule of law.\n<\/p>\n<\/p>\n
II.        COLOURABLE LEGISLATIONS:\n<\/p>\n<\/p>\n
21.        In  The  State  of Punjab  & Anr. v. Gurdial  Singh  & Ors., <\/p>\n
AIR<\/a> 1980 SC 319, this Court held that when power is exercised in  bad <\/p>\n
faith   to   attain   ends   beyond   the   sanctioned   purposes   of   power   by <\/p>\n
simulation   or   pretension   of   gaining   a     legitimate   goal,   it   is   called <\/p>\n
colourable exercise of power.  The action becomes bad where the true <\/p>\n
object is to reach an end different from the one for which the power is <\/p>\n
entrusted, guided by an extraneous consideration, whether good or bad <\/p>\n
                                                                                     2<\/span><\/p>\n
but   irrelevant   to   the   entrustment.     When   the   custodian   of   power   is <\/p>\n
influenced in exercise of its power by considerations outside those for <\/p>\n
promotion of which the power is vested, the action becomes bad for the <\/p>\n
reason that power has not been exercised bonafide for the end design.  <\/p>\n
22.        It has consistently been held by this Court that the doctrine of <\/p>\n
malafide does not involve any question of bonafide or malafide on the <\/p>\n
part of legislature as in such a case, the Court is concerned to a limited <\/p>\n
issue  of  competence   of  the  particular   legislature   to  enact   a   particular <\/p>\n
law.  If the legislature is competent to pass a particular enactment, the <\/p>\n
motives which impelled it to an act are really irrelevant.  On the other <\/p>\n
hand, if the legislature lacks competence, the question of motive does <\/p>\n
not arrive at all.  Therefore, whether a statute is constitutional or not is, <\/p>\n
thus, always a question of power of the legislature to enact that Statute.<\/p>\n
                  Motive   of   the   legislature   while   enacting   a   Statute   is <\/p>\n
inconsequential:   “Malice   or   motive  is   beside   the   point,   and   it   is   not  <\/p>\n
permissible   to   suggest   parliamentary   incompetence   on   the   score   of  <\/p>\n
mala fides.”\n<\/p>\n<\/p>\n
          The legislature, as a body, cannot be accused of having passed a <\/p>\n
law   for   an   extraneous   purpose.   This   kind   of   “transferred   malice”   is <\/p>\n
unknown in the field of legislation.\n<\/p>\n
                                                                                       2<\/span><\/p>\n
[See:  K.C.   Gajapati   Narayan   Deo   &   Ors.   v.   State   of   Orissa,  AIR<\/a> <\/p>\n
1953 SC 375;  R.S. Joshi, Sales Tax Officer, Gujarat & Ors. v. Ajit <\/p>\n
Mills   Limited   &   Anr.,  AIR   1977   SC   2279;  K.   Nagaraj   &   Ors.   v. <\/p>\n
State   of   Andhra   Pradesh   &   Anr.,  AIR<\/a>   1985   SC   551;  Welfare <\/p>\n
Assocn.     A.R.P.,   Maharashtra   &   Anr.   v.   Ranjit   P.   Gohil   &   Ors., <\/p>\n
AIR<\/a> 2003 SC 1266; and State of Kerala & Anr. v. Peoples Union<\/a> for <\/p>\n
Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46].<\/p>\n
III.      LAWS  CONTRAVENING ARTICLE 13(2):\n<\/p>\n<\/p>\n
23.       The legislative competence can be adjudged with reference to <\/p>\n
Articles 245 and 246 of the Constitution read with the three lists given <\/p>\n
in the Seventh Schedule as well as with reference to Article 13(2) of <\/p>\n
the Constitution which prohibits the State from making any law which <\/p>\n
takes   away   or   abridges   the   rights   conferred   by   Part-III   of   the <\/p>\n
Constitution and provides  that any  law made  in contravention  of this <\/p>\n
Clause shall, to the extent of contravention be void.  <\/p>\n
24.       In  Deep Chand & Ors. v. State of U.P. & Ors.,   AIR<\/a> 1959 <\/p>\n
SC 648, this Court held:\n<\/p>\n<\/p>\n
           “There   is   a   clear   distinction   between   the   two  <\/p>\n
           clauses of Article 13. Under cl. (1) of Article 13, a  <\/p>\n
           pre-Constitution  law  subsists  except  to  the extent  <\/p>\n
           of its inconsistency with the provisions of Part III;  <\/p>\n
           whereas,   no   post-Constitution   law   can   be   made  <\/p>\n
                                                                               3<\/span><\/p>\n
         contravening   the   provisions   of   Part   III,   and  <\/p>\n
         therefore the law, to that extent, though made, is a  <\/p>\n
         nullity from its inception of this clear distinction is  <\/p>\n
         borne   in   mind   much   of   the   cloud   raised   is  <\/p>\n
         dispelled.\n<\/p><\/blockquote>\n
<\/blockquote>\n
               When   cl.   (2)   of   Art.   13   says   in   clear   and  <\/p>\n
         unambiguous terms that no State shall make any law  <\/p>\n
         which takes away or abridges the rights conferred by  <\/p>\n
         Part  III, it  will not  avail the  State to  contend  either  <\/p>\n
         that the clause does not embody a curtailment of the  <\/p>\n
         power to legislate or that it imposes only a check but  <\/p>\n
         not a prohibition. A constitutional prohibition against  <\/p>\n
         a State making certain laws cannot be whittled down  <\/p>\n
         by analogy or by drawing inspiration from decisions  <\/p>\n
         on the provisions of other Constitutions; nor can we  <\/p>\n
         appreciate the argument that the words “any law” in  <\/p>\n
         the second line of Art. 13(2) posits the survival of the  <\/p>\n
         law  made in  the teeth  of such   prohibition. It  is  said  <\/p>\n
         that   a   law   can   come   into   existence   only   when   it   is  <\/p>\n
         made and therefore any law made in contravention of  <\/p>\n
         that   clause   presupposes   that   the   law   made   is   not   a  <\/p>\n
         nullity. This argument may be subtle but is not sound.  <\/p>\n
         The words ‘any law” in that clause can only mean an  <\/p>\n
         Act   passed   or   made   factually,   notwithstanding   the  <\/p>\n
         prohibition. The result of such contravention is stated  <\/p>\n
         in   that   clause.  A   plain   reading   of   the   clause  <\/p>\n
         indicates,   without   any   reasonable   doubt,   that   the  <\/p>\n
         prohibition goes to the root of the matter and limits  <\/p>\n
         the   State’s   power   to   make   law   ;   the   law   made   in  <\/p>\n
         spite of the prohibition is  a still born law.”<\/p>\n<\/blockquote>\n
                                                                    (Emphasis <\/p>\n
         added)<\/p>\n
(See also:  Mohd. Shaukat Hussain Khan v. State of A.P.  AIR 1974 <\/p>\n
SC 1480).\n<\/p><\/blockquote>\n
\n
                                                                                     3<\/span><\/p>\n<\/blockquote>\n
25.        In  Behram   Khurshid   Pesikaka   v.   State   of   Bombay  AIR<\/a> <\/p>\n
1955 SC 123; and  Mahendra Lal Jaini v. State of Uttar Pradesh & <\/p>\n
Ors.  AIR<\/a> 1963 SC 1019, this Court held that in case a statute violates <\/p>\n
any of the fundamental rights enshrined in Part III of the Constitution of <\/p>\n
India,   such   statute   remains   still-born;   void;   ineffectual   and   nugatory, <\/p>\n
without   having   legal   force   and   effect   in   view   of   the   provisions   of <\/p>\n
Article   13(2)   of   the   Constitution.     The   effect   of   the   declaration   of   a <\/p>\n
statute   as   unconstitutional   amounts   to   as   if   it   has   never   been   in <\/p>\n
existence.   Rights cannot be built up under it; contracts which depend <\/p>\n
upon it for their consideration are void.  The unconstitutional act is not <\/p>\n
the law.  It confers no right and imposes no duties.  More so, it does not <\/p>\n
uphold any protection nor create any office.   In legal contemplation it <\/p>\n
remains  not  operative   as   it  has  never  been  passed.   In  case  the  statute <\/p>\n
had   been   declared   unconstitutional,   the   effect   being   just   to   ignore   or <\/p>\n
disregard.\n<\/p>\n<\/p>\n
IV.         DOCTRINE OF LIFTING THE VEIL:\n<\/p>\n<\/p>\n
26.         However, in order to test the constitutional validity of the Act, <\/p>\n
where it is alleged that the statute violates the fundamental rights, it is <\/p>\n
necessary to ascertain  its  true  nature and  character  and  the impact  of <\/p>\n
the Act.  Thus, courts may examine with some strictness the substance <\/p>\n
                                                                                         3<\/span><\/p>\n
of the legislation and for that purpose, the court has to look behind the <\/p>\n
form and appearance thereof to discover the true character and nature <\/p>\n
of the legislation.  Its purport and intent have to be determined. In order <\/p>\n
to do so it is permissible  in law to take into consideration all factors <\/p>\n
such as history of the legislation, the purpose thereof, the surrounding <\/p>\n
circumstances   and   conditions,   the   mischief   which   it   intended   to <\/p>\n
suppress, the remedy for the disease which the legislature resolved to <\/p>\n
cure and the true reason for the remedy. (Vide: Dwarkadas Shrinivas <\/p>\n
v. The Sholapur Spinning & Weaving Co. Ltd. & Ors.,  AIR<\/a> 1954 <\/p>\n
SC   119;  Mahant   Moti   Das   v.   S.P.   Sahi,   The   Special   Officer<\/a>   in <\/p>\n
charge   of   Hindu   Religious   Trust   &   Ors.,  AIR   1959   SC   942;   and <\/p>\n
Hamdard Dawakhana & Anr. v. Union of India & Ors.,  AIR<\/a> 1960 <\/p>\n
SC 554).\n<\/p>\n<\/p>\n
V.       INTERFERENCE   BY   COURT   WITH   EXPERT   BODY'S \n\n         OPINION: \n\n\n<\/pre>\n
27.       Undoubtedly,  the Court lacks  expertise  especially  in disputes <\/p>\n
relating   to   policies   of   pure   academic   educational   matters.   Therefore, <\/p>\n
generally   it   should   abide   by   the   opinion   of   the   Expert   Body.     The <\/p>\n
Constitution Bench of this Court in The University of Mysore & Anr. <\/p>\n
v.  C.D. Govinda Rao & Anr., AIR<\/a> 1965 SC 491  held that “normally <\/p>\n
the courts should be slow to interfere with the opinions expressed by the <\/p>\n
                                                                                    3<\/span><\/p>\n
experts”. It would normally be wise and safe for the courts to leave such <\/p>\n
decisions to experts who are more familiar with the problems they face <\/p>\n
than   the   courts   generally   can   be.   This   view   has   consistently   been <\/p>\n
reiterated by this Court in Km. Neelima Misra v. Dr. Harinder Kaur <\/p>\n
Paintal   &   Ors.,  AIR<\/a>   1990   SC   1402;  The  Secretary   &   Curator, <\/p>\n
Victoria Memorial  Hall v. Howrah Ganatantrik Nagrik Samity  & <\/p>\n
Ors., AIR<\/a> 2010 SC 1285; Dr. Basavaiah v. Dr. H.L. Ramesh & Ors.,<\/a> <\/p>\n
(2010) 8 SCC 372; and  State of H.P. & Ors. v. H.P. Nizi Vyavsayik <\/p>\n
Prishikshan Kendra Sangh,<\/a> (2011) 6 SCC 597.\n<\/p>\n<\/p>\n
VI.      WHAT   CANNOT   BE   DONE   DIRECTLY-CANNOT   BE \n\n         DONE INDIRECTLY:\n\n\n\n<\/pre>\n
28.        It   is   a   settled   proposition   of   law   that   what   cannot   be   done <\/p>\n
directly,   is   not   permissible   to   be   done   obliquely,   meaning   thereby, <\/p>\n
whatever is prohibited by law to be done, cannot legally be effected by <\/p>\n
an   indirect   and   circuitous   contrivance   on   the   principle   of   “quando  <\/p>\n
aliquid   prohibetur,   prohibetur   at  omne   per   quod   devenitur   ad   illud.” <\/p>\n
An   authority   cannot   be   permitted   to   evade   a   law   by   “shift   or <\/p>\n
contrivance”. (See:   Jagir Singh v. Ranbir Singh, AIR<\/a> 1979 SC 381; <\/p>\n
M.C. Mehta v. Kamal  Nath & Ors., AIR<\/a> 2000 SC 1997; and  Sant <\/p>\n
                                                                                        3<\/span><\/p>\n
Lal Gupta & Ors. v. Modern Co-operative Group Housing Society <\/p>\n
Ltd. & Ors., JT 2010 (11) SC 273).\n<\/p>\n<\/p>\n
VII.       CONDITIONAL LEGISLATION:\n<\/p>\n<\/p>\n
29.        As the legislature cannot carry out each and every function by <\/p>\n
itself,   it   may   be   necessary   to   delegate   its   power   for   certain   limited <\/p>\n
purposes in favour of the executive. Delegating such powers itself is a <\/p>\n
legislative  function.  Such delegation of power, however, cannot be <\/p>\n
wide, uncanalised or unguided. The legislature while delegating such <\/p>\n
power   is   required   to   lay   down   the   criteria   or   standard   so   as   to <\/p>\n
enable the delegatee to act within the framework of the statute. The <\/p>\n
principle   on   which   the   power   of   the   legislature   is   to   be   exercised   is <\/p>\n
required   to   be   disclosed.   It   is   also   trite   that   essential   legislative <\/p>\n
functions cannot be delegated.\n<\/p>\n<\/p>\n
                       Delegation   cannot   be   extended   to   “repealing   or <\/p>\n
altering in essential particulars of laws which are already in force in the <\/p>\n
area in question”. (Vide:   re: Article 143, Constitution of India and <\/p>\n
Delhi Laws Act (1912) etc., AIR 1951 SC 332).\n<\/p>\n<\/p>\n
30.        The   legislature   while   delegating   such   powers   has   to   specify <\/p>\n
that   on   certain   data   or   facts   being   found   and   ascertained   by   an <\/p>\n
                                                                                         3<\/span><\/p>\n
executive authority, the operation of the Act can be extended to certain <\/p>\n
areas   or   may   be   brought   into   force   on   such   determination   which   is <\/p>\n
described   as   conditional   legislation.   While   doing   so,   the   legislature <\/p>\n
must retain in its own hands the essential legislative functions and what <\/p>\n
can   be   delegated   is   the   task   of   subordinate   legislation   necessary   for <\/p>\n
implementing   the   purpose   and   object     of     the     Act.     Where   the <\/p>\n
legislative policy is enunciated with sufficient clearness or a standard is <\/p>\n
laid   down,   the   courts   should   not   interfere.   What   guidance   should   be <\/p>\n
given   and   to   what   extent   and   whether   guidance   has   been   given   in   a <\/p>\n
particular case at all depends on consideration of the provisions of the <\/p>\n
particular Act with which the Court has to deal including its preamble. <\/p>\n
(See: In re: Delhi Laws Act (supra);  The  Municipal Corporation of <\/p>\n
Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi & Anr., <\/p>\n
AIR<\/a> 1968 SC 1232).\n<\/p>\n<\/p>\n
31.         In  Rajnarain   Singh   v.   Chairman,   Patna   Administration <\/p>\n
Committee, Patna & Anr.,  AIR<\/a> 1954 SC 569, a Constitution Bench <\/p>\n
of this Court explained the ratio of the judgment in re: Delhi Laws Act <\/p>\n
(supra) observing as under:\n<\/p>\n<\/p>\n
                 “In   our   opinion,   the   majority   view   was   that   an  <\/p>\n
       executive   authority   can   be   authorised   to   modify   either  <\/p>\n
                                                                                     3<\/span><\/p>\n
       existing   or   future   laws   but   not   any   essential   feature.  <\/p>\n
       Exactly,   what   constitutes   an   essential   feature   cannot   be  <\/p>\n
       enunciated in general terms, and there was some divergence  <\/p>\n
       of view about this in the former case, but this much is clear  <\/p>\n
       from the opinions set out above: it cannot include a change  <\/p>\n
       of policy.”                                                        (Emphasis <\/p>\n
       added)<\/p>\n<\/blockquote>\n
32.         In  Bangalore   Woollen,   Cotton   and   Silk   Mills   Co.   Ltd., <\/p>\n
Bangalore   v.   Corporation   of   the   City   of   Bangalore<\/a>   by   its <\/p>\n
Commissioner, Bangalore City, AIR 1962 SC 1263, this  Court dealt <\/p>\n
with a similar issue in a case where the legislature had conferred power <\/p>\n
upon the Municipal Corporation  to determine on what other goods and <\/p>\n
under   what   conditions   the   tax   should   be   levied.   In   that   case   the <\/p>\n
legislature had prepared a list of goods which could be subjected to tax <\/p>\n
and the rate  had also  been fixed  in addition thereto.  The  powers had <\/p>\n
been   conferred   on   the   Municipal   Corporation.   This   Court   therefore <\/p>\n
came to the conclusion that it was not a case of excessive delegation <\/p>\n
which   may   be   held   to   be   bad   in   view   of   the   judgment   in  Hamdard <\/p>\n
Dawakhana v. Union of India, AIR<\/a> 1960 SC 554, rather it was a case <\/p>\n
of conditional legislation.\n<\/p>\n<\/p>\n
33.         In  Basant   Kumar   Sarkar   &   Ors.   v.   The   Eagle   Rolling <\/p>\n
Mills Ltd. & Ors., AIR<\/a> 1964 SC 1260,  this Court examined the issue <\/p>\n
                                                                                        3<\/span><\/p>\n
of   extension   of     Employees   State   Insurance   Act,   i.e.   temporal <\/p>\n
application   of   employees   insurance   legislation   and   held   that   it   was   a <\/p>\n
case of conditional legislation and not of excessive delegation because <\/p>\n
there was no element of delegation therein   at all.   The Court held as <\/p>\n
under:\n<\/p>\n<\/p>\n
                            “Thus, it is clear that when extending the  <\/p>\n
       Act to different establishments, the relevant Government is  <\/p>\n
       given   the   power   to   constitute   a   Corporation   for   the  <\/p>\n
       administration of the scheme of Employees State Insurance.  <\/p>\n
       The course adopted by modern legislatures in dealing with  <\/p>\n
       welfare   scheme   has   uniformly   conformed   to   the   same  <\/p>\n
       pattern. The legislature evolves a scheme of socio-economic  <\/p>\n
       welfare,   makes   elaborate   provisions   in   respect   of   it   and  <\/p>\n
       leaves it to the Government concerned to decide when, how  <\/p>\n
       and in what manner the scheme should be introduced. That,  <\/p>\n
       in our opinion, cannot amount to excessive delegation.” <\/p>\n<\/blockquote>\n
34.         In view of the above, the law stands crystallised to the effect <\/p>\n
that in case the legislature wants to delegate its power in respect of the <\/p>\n
implementation   of   the   law   enacted   by   it,   it   must   provide   sufficient <\/p>\n
guidelines,   conditions,   on   fulfillment   of   which,   the   Act   would   be <\/p>\n
enforced  by  the  delegatee.  Conferring  unfettered,  uncanalised  powers <\/p>\n
without   laying   down   certain   norms   for   enforcement   of   the   Act <\/p>\n
tantamounts to abdication of legislative power by the legislature which <\/p>\n
is not permissible in law. More so, where the Act has already come into <\/p>\n
                                                                                     3<\/span><\/p>\n
force,   such   a   power   cannot   be   exercised   just   to   nullify   its <\/p>\n
commencement thereof.\n<\/p>\n<\/p>\n
VIII.      LEGISLATIVE ARBITRARINESS:\n<\/p>\n<\/p>\n
35.       In  Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors., <\/p>\n
AIR<\/a> 1981 SC 487, this Court held that Article 14 strikes at  arbitrariness <\/p>\n
because an action that is arbitrary, must necessarily involve negation of <\/p>\n
equality.     Whenever   therefore,   there   is   arbitrariness   in   State   action, <\/p>\n
whether   it   be   of   the  legislature  or   of   the   executive,   Article   14 <\/p>\n
immediately   springs   into   action   and   strikes   down   such   State   action. <\/p>\n
(See also :  E.P. Royappa v. State of Tamil Nadu & Anr.,  AIR<\/a> 1974 <\/p>\n
SC   555;   and  Smt.   Meneka   Gandhi   v.   Union   of   India   &   Anr.  AIR <\/p>\n
1978 SC 597).\n<\/p>\n<\/p>\n
36.           In  M\/s.  Sharma   Transport   rep.   by   D.P.   Sharma   v. <\/p>\n
Government   of   A.P.   &  Ors.  AIR<\/a>   2002   SC   322,     this   Court   defined <\/p>\n
arbitrariness observing that party has to satisfy that the action was not <\/p>\n
reasonable   and   was   manifestly   arbitrary.     The   expression   `arbitrarily’ <\/p>\n
means;   act   done   in   an   unreasonable   manner,   as   fixed   or   done <\/p>\n
capriciously or at pleasure without adequate determining principle, not <\/p>\n
                                                                                   3<\/span><\/p>\n
founded   in   the   nature   of   things,   non-rational,   not   done   or   acting <\/p>\n
according to reason or judgment, depending on the will alone.<\/p>\n
37.       In Bombay Dyeing & Manufacturing Co. Ltd. (3) v. Bombay <\/p>\n
Environmental Action Group & Ors. AIR 2006 SC 1489,  this Court <\/p>\n
held that arbitrariness on the part  of the legislature  so as to make the <\/p>\n
legislation violative of Article 14 of the Constitution should ordinarily <\/p>\n
be manifest arbitrariness.\n<\/p>\n<\/p>\n
38.        In   cases   of  Bidhannagar   (Salt   Lake)   Welfare   Assn.   v. <\/p>\n
Central   Valuation   Board   &  Ors.  AIR<\/a>   2007   SC   2276;     and  Grand <\/p>\n
Kakatiya   Sheraton   Hotel   and   Towers   Employees   and   Workers <\/p>\n
Union v. Srinivasa Resorts Limited & Ors. AIR<\/a> 2009 SC 2337, this <\/p>\n
Court held that a law cannot be declared ultra vires on the ground of <\/p>\n
hardship but can be done so on the ground of total unreasonableness. <\/p>\n
The   legislation   can   be   questioned   as   arbitrary   and   ultra   vires   under <\/p>\n
Article 14.  However, to declare an Act ultra vires under Article14, the <\/p>\n
Court  must   be   satisfied   in  respect   of  substantive   unreasonableness   in <\/p>\n
the statute itself.\n<\/p>\n<\/p>\n
IX.      AMENDING ACT-IF STRUCK DOWN-WHETHER OLD \n\n         LAW WILL REVIVE:\n\n\n\n\n\n                                                                                    4<\/span>\n\n\n<\/pre>\n
39.       This   Court   in  Bhagat   Ram   Sharma  v.  Union   of   India   & <\/p>\n
Ors.,  AIR<\/a> 1988 SC 740  explained the distinction between repeal and <\/p>\n
amendment observing that amendment includes abrogation or deletion <\/p>\n
of a provision in an existing statute. If the amendment  of an existing <\/p>\n
law is small, the Act prefaces to amend; if it is extensive, it repeals and <\/p>\n
re-enacts it.\n<\/p>\n<\/p>\n
40.      In  State   of   Rajasthan   v.   Mangilal   Pindwal  AIR<\/a>   1996   SC <\/p>\n
2181, this Court held that when the statute is amended, the process of <\/p>\n
substitution of statutory provisions consists of two parts:-<\/p>\n
(i)      the old rule is made to cease to exist;\n\n\n(ii)     the new rule is brought into existence in its place.\n\n\n<\/pre>\n
In other words, the substitution of a provision results in repeal of the <\/p>\n
earlier provision and its replacement by the new provision. (See also: <\/p>\n
Koteswar Vittal Kamath v. K.Rangappa Baliga & Co. AIR<\/a> 1969 SC <\/p>\n
504).\n<\/p>\n<\/p>\n
41.       In  Firm A.T.B. Mehtab Majid and Co.  v.  State of Madras <\/p>\n
& Anr., AIR 1963 SC 928, this Court held:\n<\/p>\n<\/p>\n
          “22. It is a settled legal proposition that whenever  <\/p>\n
          an   Act   is   repealed,   it   must   be   considered   as   if   it  <\/p>\n
          had   never   existed.   The   object   of   repeal   is   to  <\/p>\n
          obliterate the Act from the statutory books, except  <\/p>\n
                                                                                      4<\/span><\/p>\n
           for certain purposes as provided under Section 6  <\/p>\n
           of the General Clauses Act, 1897. Repeal is not a  <\/p>\n
           matter of mere form but is of substance. Therefore,  <\/p>\n
           on   repeal,   the   earlier   provisions   stand  <\/p>\n
           obliterated\/abrogated\/wiped   out   wholly   i.e.   pro  <\/p>\n
           tanto repeal”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
42.       Thus,   undoubtedly,   submission   made   by   learned   senior <\/p>\n
counsel on behalf of the respondents that once the Act stands repealed <\/p>\n
and the amending Act is struck down by the Court being invalid and <\/p>\n
ultra vires\/unconstitutional on the ground of legislative incompetence, <\/p>\n
the repealed  Act will  automatically revive  is preponderous and needs <\/p>\n
no further consideration.\n<\/p>\n<\/p>\n
          This   very   Bench   in  State   of  Uttar   Pradesh   &   Ors.   v. <\/p>\n
Hirendra Pal Singh & Ors.,<\/a> (2011) 5 SCC 305, after placing reliance <\/p>\n
upon a large number of earlier judgments particularly   in  Ameer-un-<\/p>\n
Nissa Begum  v.  Mahboob Begum & Ors.,  AIR<\/a> 1955 SC 352;    B.N. <\/p>\n
Tewari v. Union of India & Ors., AIR 1965 SC 1430; India Tobacco <\/p>\n
Co.  Ltd.  v.  CTO,   Bhavanipore   &  Ors.,  AIR<\/a>   1975  SC   155;  Indian <\/p>\n
Express   Newspapers   (Bombay)   Private   Ltd.   &   Ors.  v.  Union   of <\/p>\n
India   &   Ors.,  AIR<\/a>   1986   SC   515;  West   U.P.   Sugar   Mills   Assn.  v. <\/p>\n
State of U.P.,  AIR<\/a> 2002 SC 948;  Zile Singh  v.  State of Haryana & <\/p>\n
Ors.,<\/a>  (2004)   8   SCC   1;  State   of   Kerala  v.  Peoples   Union   for   Civil <\/p>\n
                                                                                4<\/span><\/p>\n
Liberties,  Kerala   State   Unit   &   Ors.,  (2009)   8   SCC   46;    and  Firm <\/p>\n
A.T.B. Mehtab Majid and Co. (supra)  reached the same conclusion.<\/p>\n
43.        There is another limb of this legal proposition, that is, where <\/p>\n
the  Act   is   struck   down  by   the  Court   being  invalid,   on  the   ground   of <\/p>\n
arbitrariness in view of the provisions of Article 14 of the Constitution <\/p>\n
or   being   violative   of   fundamental   rights   enshrined   in   Part-III   of   the <\/p>\n
Constitution,   such   Act   can   be   described   as  void   ab-initio  meaning <\/p>\n
thereby   unconstitutional,   still  born  or  having  no  existence  at  all.      In <\/p>\n
such   a   situation,   the   Act   which   stood   repealed,   stands   revived <\/p>\n
automatically.   (See:  Behram   Khurshid   Pesikaka  (Supra);   and <\/p>\n
Mahendra Lal Jaini (Supra)<\/p>\n
44.       In Harbilas Rai Bansal v. State of Punjab & Anr. AIR<\/a> 1996 <\/p>\n
SC 857, while dealing with the similar situation, this Court struck down <\/p>\n
the   Amending   Act   being   violative   of   Article   14   of   the   Constitution. <\/p>\n
The Court further directed as under:\n<\/p>\n<\/p>\n
           “We   declare   the   abovesaid   provision   of   the  <\/p>\n
           amendment   as   constitutionally   invalid   and   as   a  <\/p>\n
           consequence restore the original provisions of the  <\/p>\n
           Act  which   were   operating   before   coming   into  <\/p>\n
           force of the Amendment Act.”                     (Emphasis <\/p>\n
           added)   <\/p>\n
                                                                                     4<\/span><\/p>\n<\/blockquote>\n
45.        Thus, the law on the issues stands crystallised that in case the <\/p>\n
Amending   Act   is   struck   down   by   the   court   for   want   of   legislative <\/p>\n
competence or  is violative of any of the fundamental rights enshrined <\/p>\n
in Part III of the Constitution, it would be un-enforceable in view of the <\/p>\n
provision   under   Article   13(2)   of   the   Constitution   and   in   such <\/p>\n
circumstances   the   old   Act   would   revive,   but   not   otherwise.   This <\/p>\n
proposition   of   law   is,   however,   not   applicable   so   far   as   subordinate <\/p>\n
legislation is concerned.\n<\/p>\n<\/p>\n
X.       WHETHER   LEGISLATURE   CAN   OVERRULE   THE \n\n         JUDGMENT OF THE COURT:\n\n\n\n\n46.       A   Constitution   Bench   of   this   Court   in    Shri   Prithvi   Cotton \n\n\n<\/pre>\n
Mills   Ltd.   &   Anr.   v.   Broach   Borough   Municipality   &   Ors.,  AIR <\/p>\n
1970 SC 192,  examined the issue and held as under: <\/p>\n
                “…..When a legislature sets out to validate a tax  <\/p>\n
           declared by a court to be illegally collected under an  <\/p>\n
           ineffective   or   an   invalid   law,   the   cause   for  <\/p>\n
           ineffectiveness   or   invalidity   must   be   removed   before  <\/p>\n
           validation   can   be   said   to   take   place   effectively.   The  <\/p>\n
           most   important   condition,   of   course,   is   that   the  <\/p>\n
           legislature must possess the power to impose the tax,  <\/p>\n
           for,   if   it   does   not,   the   action   must   ever   remain  <\/p>\n
           ineffective   and   illegal.   Granted   legislative  <\/p>\n
           competence, it is not sufficient to declare merely that  <\/p>\n
                                                                                      4<\/span><\/p>\n
            the   decision   of   the   Court   shall   not   bind   for   that   it  <\/p>\n
            tantamounts   to   reversing   the   decision   in   exercise   of  <\/p>\n
            judicial power which the legislature does not possess  <\/p>\n
            or   exercise.   A   court’s   decision   must   always   bind  <\/p>\n
            unless   the   conditions   on   which   it   is   based   are   so  <\/p>\n
            fundamentally   altered   that   the   decision   could   not  <\/p>\n
            have been given in the altered circumstances…..”<\/p>\n<\/blockquote>\n
47.    In S.R. Bhagwat & Ors. v. State of Mysore,  AIR<\/a> 1996 SC 188, <\/p>\n
a  similar   issue   was   considered   by   this   Court   while   considering   the <\/p>\n
provisions of Karnataka State Civil Services (Regulation of Promotion, <\/p>\n
Pay   &   Pension)   Act,   1973.   In   that   case,   the   provisions   of   that   Act <\/p>\n
disentitled  deemed promotees to arrears for the period prior to actual <\/p>\n
promotion.   These   provisions   were   held   to   be   not   applicable   where <\/p>\n
directions  of  the  competent  court  against  the  State  had  become   final. <\/p>\n
The Court observed that any action to take away the power of  judicial <\/p>\n
decision   shall   be   ultra   vires   the   powers   of   the   State   legislature   as   it <\/p>\n
encroached   upon   judicial   review   and   tried   to   overrule   the   judicial <\/p>\n
decision   binding   between   the   parties.     The   binding   judicial <\/p>\n
pronouncement   between   the   parties   cannot   be   made   ineffective   with <\/p>\n
the   aid   of   any   legislative   power   by   enacting   a   provision   which   in <\/p>\n
substance   overrules   such   a   judgment   and   is   not   in   the   realm   of   a <\/p>\n
legislative   enactment   which   displaces   the   basis   or   foundation   of   the <\/p>\n
judgment and uniformly applies to a class of persons concerned with <\/p>\n
                                                                                           4<\/span><\/p>\n
the  entire   subject  sought   to  be  covered  by   such   an  enactment  having <\/p>\n
retrospective effect.\n<\/p>\n<\/p>\n
48.        While deciding the said case, this Court placed reliance on its <\/p>\n
earlier   judgments   in   Re,  Cauvery   Water   Disputes   Tribunal,  AIR <\/p>\n
1992 SC  522; and  G.C. Kanungo  v.  State  of Orissa,  AIR<\/a>  1995  SC <\/p>\n
1655.     In the former case, the Constitution Bench of this Court held <\/p>\n
that   the   legislature   could   change   the   basis   on   which   a   decision   was <\/p>\n
given by the Court and, thus, change the law in general, which would <\/p>\n
affect  a  class of persons  and events   at large.     However,  it  cannot  set <\/p>\n
aside   an   individual   decision   inter-parties   and   affect   their   rights   and <\/p>\n
liabilities alone.   Such an act on the part of the legislature amounts to <\/p>\n
exercising   the   judicial   power   of   the   State   and   functioning   as   an <\/p>\n
appellate court or tribunal.   In the latter case, a similar view had been <\/p>\n
reiterated observing that the award of the tribunal could not be nullified <\/p>\n
by   an   Amendment   Act  having   recourse   to   the   legislative   power   as   it <\/p>\n
tantamounts   to   nothing   else,   but   “the   abuse   of   this   power   of <\/p>\n
legislature.”\n<\/p>\n<\/p>\n
49.       In Madan Mohan Pathak & Anr. v. Union of India & Ors., <\/p>\n
AIR<\/a>  1978  SC  803,    a    seven-Judge Bench   of  this  Court  considered  a <\/p>\n
                                                                                     4<\/span><\/p>\n
similar   issue   and   held   that   the   act   of   legislature   cannot   annul   a   final <\/p>\n
judgment   giving effect to rights of any party.  A declarative judgment <\/p>\n
holding   an   imposition   of   tax   invalid   can   be   superseded   by   a   re-<\/p>\n
validation   statute.   But   where   the   factual   or   legal   situation   is <\/p>\n
retrospectively   altered   by   an   act   of   legislature,   the   judgment   stands, <\/p>\n
unless reversed by an appeal or review. Bringing a legislation in order <\/p>\n
to nullify the judgment of a competent court would amount to trenching <\/p>\n
upon the judicial power and no legislation is permissible which is meant <\/p>\n
to set aside the result of the mandamus issued by a court even though, <\/p>\n
the   amending   statute   may   not   mention   such   an   objection.   The   rights <\/p>\n
embodied   in   a   judgment   could   not   be   taken   away   by   the   legislature <\/p>\n
indirectly.\n<\/p>\n<\/p>\n
         A similar view has been reiterated in K. Sankaran Nair (Dead) <\/p>\n
through LRs. v. Devaki Amma Malathy Amma  & Ors.,<\/a>  (1996) 11 <\/p>\n
SCC 428.\n<\/p>\n<\/p>\n
50.         The   legislature   cannot   by   bare   declaration,   without   anything <\/p>\n
more,   directly   overrule,   reverse   or   override   a   judicial   decision. <\/p>\n
However it can, in exercise of the plenary powers conferred upon it by <\/p>\n
Articles   245   and   246   of   the   Constitution,   render   a   judicial   decision <\/p>\n
                                                                                           4<\/span><\/p>\n
ineffective by enacting a valid law fundamentally altering or changing <\/p>\n
the conditions on which such a decision is based. <\/p>\n
(Vide: A. Manjula Bhashini & Ors. v. Managing Director, Andhra <\/p>\n
Pradesh Women’s Cooperative Finance Corporation Ltd. & Anr.,<\/a> <\/p>\n
(2009) 8 SCC 431).\n<\/p>\n<\/p>\n
51.       In view of the above, the law on the issue can be summarised <\/p>\n
to the effect that a judicial pronouncement of a competent court cannot <\/p>\n
be annulled by the legislature in exercise of its legislative powers   for <\/p>\n
any reason whatsoever.   The legislature, in order to revalidate the law, <\/p>\n
can re-frame the conditions existing prior to the judgment on the basis <\/p>\n
of which certain statutory provisions had been declared ultra vires and <\/p>\n
unconstitutional.\n<\/p>\n<\/p>\n
XI.      READING   OF   THE   STATEMENT   OF   OBJECTS   AND \n\n         REASONS: WHILE INTERPRETING THE STATUTORY \n\n         PROVISIONS: \n\n\n\n<\/pre>\n
52.  The Statement of Objects and Reasons appended to the Bill is not <\/p>\n
admissible as an aid to the construction of the Act to be passed, but it <\/p>\n
can be used for limited purpose for ascertaining the conditions which <\/p>\n
prevailed at that time which necessitated the making of   the law, and <\/p>\n
the   extent   and   urgency   of   the   evil,   which   it   sought   to   remedy.   The <\/p>\n
Statement of Objects and Reasons may be relevant to find out what is <\/p>\n
the  objective  of   any   given   statute   passed   by   the   legislature.   It   may <\/p>\n
                                                                                      4<\/span><\/p>\n
provide   for   the   reasons   which   induced   the   legislature   to   enact   the <\/p>\n
statute. “For the purpose of  deciphering the objects and purport  of <\/p>\n
the   Act,   the   court   can   look   to   the   Statement   of   Objects   and   Reasons <\/p>\n
thereof”.     (Vide:  Kavalappara   Kottarathil   Kochuni   @   Moopil <\/p>\n
Nayar  v. The States  of Madras and Kerala & Ors., AIR 1960 SC <\/p>\n
1080;   and  Tata Power Company Ltd. v. Reliance  Energy  Ltd. & <\/p>\n
Ors.,<\/a> (2009) 16 SCC 659).\n<\/p>\n<\/p>\n
53.  In A. Manjula Bhashini & Ors. (Supra), this Court held as under: <\/p>\n
       “The   proposition   which   can   be   culled   out   from   the  <\/p>\n
       aforementioned judgments is that although the Statement of  <\/p>\n
       Objects   and   Reasons   contained   in   the   Bill   leading   to  <\/p>\n
       enactment   of   the   particular   Act   cannot   be   made   the   sole  <\/p>\n
       basis   for   construing   the   provisions   contained   therein,   the  <\/p>\n
       same can be referred to for understanding the background,  <\/p>\n
       the antecedent state of affairs and the mischief sought to be  <\/p>\n
       remedied   by   the   statute.   The   Statement   of   Objects   and  <\/p>\n
       Reasons   can   also   be   looked   into   as   an   external   aid  for  <\/p>\n
       appreciating   the   true   intent   of   the   legislature  and\/or   the  <\/p>\n
       object sought to be achieved by enactment of the particular  <\/p>\n
       Act or for judging reasonableness of the classification made  <\/p>\n
       by such Act.” (Emphasis added)<\/p>\n<\/blockquote>\n
54.         Thus,   in   view   of   the   above,   the   Statement   of   Objects   and <\/p>\n
Reasons   of   any   enactment   spells   out   the   core   reason   for   which   the <\/p>\n
enactment is brought and it can be looked into for appreciating the true <\/p>\n
intent of the legislature or to find out the object sought to be achieved <\/p>\n
                                                                                       4<\/span><\/p>\n
by   enactment   of   the   particular   Act   or   even   for   judging   the <\/p>\n
reasonableness of the classifications made by such Act. <\/p>\n
CASE ON MERITS:\n<\/p>\n<\/p>\n
55.        The   instant   case   requires   to   be   examined   in   the   light   of   the <\/p>\n
aforesaid settled legal propositions, though it may not be necessary to <\/p>\n
deal with all these issues in great detail as the High Court has already <\/p>\n
dealt with the same elaborately.\n<\/p>\n<\/p>\n
56.        In the instant case, as the Expert Committee had submitted a <\/p>\n
report   and most  of the  members  had  given  their  opinion on  different <\/p>\n
issues and as we have also examined the reports,  it is evident from the <\/p>\n
same   that   each   member   had   pointed   out   certain   defects   in   the <\/p>\n
curriculum as well as   in the text books etc.   There was no unanimity <\/p>\n
on   any   particular   issue,   as   each   member   has   expressed   a   different <\/p>\n
opinion on different issues\/subjects.\n<\/p>\n<\/p>\n
57.        The counter affidavit dated 7.6.2011 was filed before the High <\/p>\n
Court by Ms. D. Sabitha, the Secretary to the Government Education <\/p>\n
Department   on   behalf   of  all   the   respondents   therein.     In   reply   to   the <\/p>\n
Writ Petition she stated as under:\n<\/p>\n
                                                                                         5<\/span><\/p>\n
“I. Further the prayer for an issuance of writ of  <\/p>\n
declaration  declaring   that   the   decision   of   the  <\/p>\n
Cabinet   dated   22.5.2011   by   the   Government   of  <\/p>\n
Tamil   Nadu   to   withhold   the   implementation   of  <\/p>\n
the   Tamil   Nadu   Uniform   System   of   School  <\/p>\n
Education Act, 2010 for the academic year 2011-<\/p>\n
12   as   published   vide   News   Release   No.   289   dt.\n<\/p>\n
22.5.2011 as  null and void is not  sustainable in  <\/p>\n
law   for   the   sole   reason   that   the   policy   decision  <\/p>\n
taken   by   the   Cabinet   would   not   be   generally  <\/p>\n
subject to judicial review. It is further submitted  <\/p>\n
that the decision taken by the Cabinet to review  <\/p>\n
the   implementation   of   the   Uniform   System   of  <\/p>\n
School Education for Standards I to X is purely in  <\/p>\n
the interest of students, parents and public which  <\/p>\n
is within the domain of the popular Government..<\/p>\n
II.   Further   the   averment   that   text   books   printed  <\/p>\n
would   be   wasted   and   there   would   be   a   loss  <\/p>\n
caused to the tune of 200 crore rupees seems to  <\/p>\n
have   been   made   without   understanding   the  <\/p>\n
implications   that   could   be   created   due   to   the  <\/p>\n
implementation   of   the  illegal   policy   formulated  <\/p>\n
by the  erstwhile   Government.   The  Government  <\/p>\n
has a mandate to ensure the quality of education  <\/p>\n
and welfare of the students.   It is with this intent  <\/p>\n
the present policy is being formulated……\n<\/p>\n
\nIII.        The State, therefore, proposes to appoint  <\/p>\n
a   high   powered   committee   consisting   of   experts  <\/p>\n
in   the   field   to   undertake   a   detailed   study  of   the  <\/p>\n
more   appropriate   system   to   be   adopted   for  <\/p>\n
ensuring   the   improvement   of   quality   of  <\/p>\n
education  and social justice by providing a level  <\/p>\n
playing field to all sections of society.\n<\/p>\n
\nIV.        At this juncture, it is pointed out that the  <\/p>\n
books   that   have   been   printed   already   are  <\/p>\n
substandard   and   wanting   in   quality  and   if  <\/p>\n
followed,   would   lead   to   deterioration   of  <\/p>\n
                                                                        5<\/span><\/p>\n
           academic   Standards   of   school   students   and  <\/p>\n
           therefore  the  Cabinet has  rightly taken a policy  <\/p>\n
           decision   after   thorough   deliberation  to   stall   the  <\/p>\n
           implementation   of   the   Uniform   System   of  <\/p>\n
           School   Education   Act,   2010   as   it   suffers   from  <\/p>\n
           illegality, irrationality and unconstitutionality….<\/p>\n
           ”      (Emphasis added)<\/p>\n
         On  amendment  of  the  writ  petitions,   another  counter  affidavit <\/p>\n
 was filed by Ms. D. Sabitha, the same officer, wherein she stated on <\/p>\n
 oath, inter-alia, as under:\n<\/p>\n<\/p>\n
           “I.        This being so, the Government has taken  <\/p>\n
           a  decision   to   stall   the   implementation   of   the  <\/p>\n
           policy of the previous government that is devoid  <\/p>\n
           of   any   legal   sanction  and   has   constituted   a  <\/p>\n
           committee   to   formulate   an   appropriate   solution  <\/p>\n
           in order to redress the complications created due  <\/p>\n
           to the implementation of the illegal policy.\n<\/p>\n
\n           II…….In the Cabinet meeting held on 22.5.2011,  <\/p>\n
           it   was   initially   decided   to   do   away  with   the  <\/p>\n
           uniform   Education   system.     Since   the   schools  <\/p>\n
           were reopening on 1st  June, 2011, orders had to  <\/p>\n
           be   issued   for   printing   of   textbooks.     It   is  <\/p>\n
           submitted   that   the   advertisement   for   inviting  <\/p>\n
           tenders   for   printing   textbooks   was   issued   on  <\/p>\n
           23.5.2011.”\n<\/p>\n<\/p>\n
                      (Emphasis added)<\/p>\n
58.        The High Court, after taking note of the counter affidavit filed <\/p>\n
by   the   present   appellants   labeling   the   Act   2010   as  illegal,  irrational <\/p>\n
and  unconstitutional,  after   it   had     already   undergone   an   intense <\/p>\n
judicial   scrutiny   and   held   to   be   Constitutionally   valid   by   the   High <\/p>\n
                                                                                    5<\/span><\/p>\n
Court vide judgment and order dated 30.4.2010 and by this Court vide <\/p>\n
judgment   and   order   dated   10.9.2010,   the   question   that     arises   for <\/p>\n
consideration is   as to whether it was permissible for the Secretary of <\/p>\n
the   Education   Department   to   label   the   Act   as   illegal   and <\/p>\n
unconstitutional.   Does   such   a   conduct   amount   to   sitting   in   appeal <\/p>\n
against the judgments of the High Court as well as of this Court or does <\/p>\n
it not amount to an attempt to take away the effect of the judgments of <\/p>\n
the High Court as well of this Court ?\n<\/p>\n<\/p>\n
59.        The High Court has taken note of these pleadings taken by the <\/p>\n
State authorities :\n<\/p>\n<\/p>\n
           “From   a  perusal  of  the  counter   affidavit  filed  by  <\/p>\n
           the Secretary, School Education Department, it is  <\/p>\n
           manifestly clear that the Government has taken the  <\/p>\n
           consistent stand that the policy formulated by the  <\/p>\n
           previous   Government   by   implementing   the  <\/p>\n
           Uniform Syllabus System  was illegal  and that the  <\/p>\n
           amount   of   Rs.   200   crores   spent   for   printing   the  <\/p>\n
           textbooks  under  the  new  syllabus  was  because  of  <\/p>\n
           the wrong policy……”  (Emphasis added)<\/p>\n
                      The   report   submitted   by   the   Expert   Committee,   in <\/p>\n
fact,   did   not   contain   any   collective   opinion.     All   the   members   have <\/p>\n
expressed their different views and most of the members had approved <\/p>\n
the contents of the text books, in general, pointing out certain defects <\/p>\n
which could be cured by issuing corrigendums or replacements etc.      <\/p>\n
                                                                                    5<\/span><\/p>\n<\/blockquote>\n
60.        Section 18 of the Act 2010 enables the State Government to <\/p>\n
remove   difficulties,   if   any,   in   implementation   of   the   said   Act.   The <\/p>\n
provisions thereof read as under:\n<\/p>\n<\/p>\n
           “If   any   difficulty   arises   in   giving   effect   to   the  <\/p>\n
           provisions   of   this   Act,   the   Government   may,   by  <\/p>\n
           order   published   in   the   Tamil   Nadu   Government  <\/p>\n
           Gazette,   make   such   provisions,   not   inconsistent  <\/p>\n
           with the provisions of this Act as appears to them  <\/p>\n
           to   be   necessary   or   expedient   for   removing   the  <\/p>\n
           difficulty;…”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      Therefore,   the   amendment   itself   is   totally <\/p>\n
unwarranted.     If   the   State   Government   was  facing   any   difficulty,   the <\/p>\n
same could have been removed by issuing a Government order under <\/p>\n
Section 18 of the Act which conferred all residuary powers on it. <\/p><\/blockquote>\n
           The nature of the defect as canvassed by the State counsel is <\/p>\n
reflected   in   the   pleadings   that   indicates   an   undesirable   inclusion   of <\/p>\n
certain chapters that do not subserve the purpose of a uniform standard <\/p>\n
and   multicultural   educational   pattern.     The   contention   appears   to   be <\/p>\n
that   such   material   may   damagingly   divert   the   mind   of   the   young <\/p>\n
students towards a motivated attempt of individualistic glorification.  In <\/p>\n
the   opinion   of   the   court,   if   such   material   does   create   any   adverse <\/p>\n
impact or is otherwise targeted towards unwanted propaganda without <\/p>\n
any   contribution   towards   the   educational   standard   sought   to   be <\/p>\n
                                                                                    5<\/span><\/p>\n
achieved,   then   such   material   upon   a   thorough   investigation   and <\/p>\n
deliberation by the Expert Committee could be deleted with the aid of <\/p>\n
Section 18 of the Act 2010.  It appears that the State Government while <\/p>\n
introducing   the   Amendment   Act   2011   did   not   appropriately   focus <\/p>\n
attention   on   the   provision   of   Section   18   quoted   hereinabove   that   are <\/p>\n
inclusive   of   all   powers   that   may   be   required   to   remove   such <\/p>\n
difficulties.   Had the said provision been carefully noted, there would <\/p>\n
have been no occasion to suspend the implementation of the Act 2010. <\/p>\n
What could have been done with the help of a needle was unnecessarily <\/p>\n
attempted by wielding a sword from the blunt side. Not only this the <\/p>\n
said provision was not even pointed out by the State machinery before <\/p>\n
the High Court nor did its legal infantry choose to examine the same. <\/p>\n
Even before us the learned counsel were unable to successfully counter <\/p>\n
the availability of such powers with the State Government. <\/p>\n
                      In   addition   to   that,   needless   to   re-emphasize,   the <\/p>\n
High Court while dealing with the validity of the provisions of the Act <\/p>\n
2010, had already conceded liberty to the State Government to remove <\/p>\n
defects and had on the other hand struck down the offending provisions <\/p>\n
in Section 14 thereof empowering the State Government to compel the <\/p>\n
Education Board  to be bound on questions  of policy. Thus, the State <\/p>\n
                                                                                    5<\/span><\/p>\n
Government was left with sufficient powers to deal with the nature of <\/p>\n
defects  appropriately   under  the  said  judgment  with a  statutory   power <\/p>\n
available for that purpose under Section 18 of the Act 2010. <\/p>\n
61.         It may be relevant to point out here that Statement of Objects <\/p>\n
and   Reasons   given   to   the   Amendment   Act   2011   reveal   a   very   sorry <\/p>\n
state of affairs and point out towards the intention of the legislature not <\/p>\n
to   enforce   the   Act   2010   at   all.     Relevant   part   of   clause   9   of   the <\/p>\n
Statement of Objects and Reasons of the Amendment Act 2011 reads <\/p>\n
as under:\n<\/p>\n<\/p>\n
       “…the   State   proposes   to   appoint   a   high   powered  <\/p>\n
       committee consisting of experts in the field to undertake a  <\/p>\n
       detailed   study   of   the  more   appropriate   system   to   be  <\/p>\n
       adopted   for   ensuring   the   improvement   of   quality   and  <\/p>\n
       education  and social justice by providing a level playing  <\/p>\n
       field to all sections of society. ..” (Emphasis added)<\/p>\n
       The   aforesaid   quoted   part   of   the   same   makes   it   clear   that   the <\/p>\n
Government intended to introduce a more appropriate system to ensure <\/p>\n
the improvement of quality education, meaning thereby, that the State <\/p>\n
has no intention to enforce the uniform education system as provided <\/p>\n
under the Act 2010.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
 62.     The relevant part of  Section 3 of the Act 2010 reads as under: <\/p>\n
                                                                                        5<\/span><\/p>\n
    3(1)   Every school in the State shall follow the common syllabus <\/p>\n
    and text books as may be specified by the Board for each subject –<\/p>\n
     (a) in Standards  I  and  VI,  commencing   from the  academic   year <\/p>\n
            2010-2011;\n<\/p>\n<\/p>\n
     (b) in   Standards   II   to   V   and   Standards   VII   to   X   from   the <\/p>\n
            academic year 2011-2012.\n<\/p>\n
    (2)           Subject to the provisions of sub-section (1), every school in <\/p>\n
                  the State shall –\n<\/p>\n<\/p>\n
    (a)           follow the norms fixed by the Board for giving instruction in <\/p>\n
                  each subject;\n<\/p>\n<\/p>\n
    (b)           follow   the   norms   for   conducting   examination   as   may   be <\/p>\n
                  specified  by the Board.\n<\/p>\n<\/p>\n
63.         After  the Amendment Act 2011, Section 3  reads as under: <\/p>\n
    “3. Schools to follow common syllabus –<\/p>\n<\/blockquote>\n
           (1)           Every   school   in   the   State   shall   follow   the   common <\/p>\n
                         syllabus as may be specified by the Board for each subject <\/p>\n
                         in  Standards 1 to X from such academic year as may <\/p>\n
                         be   notified   by   the   Government  in   the   Tamil   Nadu <\/p>\n
                         Government   Gazette.     The   Government   may   specify <\/p>\n
                         different academic years for different Standards. <\/p>\n
           (2)           Until   notification   under   sub-section   (1)   is   issued,   the <\/p>\n
                         syllabus and text books for every school in the State shall <\/p>\n
                         be as follows:\n<\/p><\/blockquote>\n
                  (a)     in Standards I and VI, the system as prevailing prior to <\/p>\n
                          academic year 2010-11 shall continue; and <\/p>\n<\/blockquote>\n
                  (b) in Standards II to V and VII to X, the existing system <\/p>\n
                          shall continue,”    (Emphasis added)<\/p>\n
                                                                                          5<\/span><\/p>\n<\/blockquote>\n<\/blockquote>\n
64.   The legislature in its wisdom had enforced the Act 2010 providing <\/p>\n
for common  syllabus  and text books  for Standards  I and VI from the <\/p>\n
academic year 2010-2011 and for Standards II to V and VII to X from <\/p>\n
the academic year 2011-2012,  the validity of this law has been upheld <\/p>\n
by the High Court vide judgment and order dated 30.4.2010 and by this <\/p>\n
Court vide order dated 10.9.2010.   Certain  directions had been issued <\/p>\n
by   the   High   Court   which   could   be   carried   out   easily   by   the   State <\/p>\n
exercising its administrative powers without resorting to any legislative <\/p>\n
function. By the Amendment Act, even the application of Act 2010, so <\/p>\n
far   as   Standards   I   and   VI   are   concerned,   has   also   been   withdrawn <\/p>\n
without realising that students who have studied in academic year 2010-<\/p>\n
11   would   have   difficulty   in   the   next   higher   class   if   they   are   given   a <\/p>\n
different   syllabus   and   different   kind   of   text   books.     The   Amendment <\/p>\n
Act   2011 provided that the students in Standards I and VI would also <\/p>\n
revert back to the old system which had already elapsed.  <\/p>\n
65.    The Amendment Act 2011, in fact, nullified the earlier judgment <\/p>\n
of the High Court dated 30.4.2010,  duly approved by the order of this <\/p>\n
Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as <\/p>\n
unfettered   and   uncanalised   power   has   been   bestowed   upon   the <\/p>\n
Government   to   notify   the   commencement   of     the   uniform   education <\/p>\n
                                                                                           5<\/span><\/p>\n
system.  State Government may submit only to the extent that the High <\/p>\n
Court itself   had given  option to  the State   to implement   the Common <\/p>\n
Education System after ensuring compliance of directions issued by the <\/p>\n
High Court itself.  However, no such liberty was available to the State <\/p>\n
so far as Standards  I and VI  are concerned.\n<\/p>\n<\/p>\n
66.       It   is   also   evident   from   the   record   that   after   the   new <\/p>\n
Government was sworn in on 16.5.2011, tenders were invited to publish <\/p>\n
books being taught under the old system on 21.5.2011 and subsequent <\/p>\n
thereto,   it   was   decided   in   the   Cabinet   meeting   on   22.5.2011   not   to <\/p>\n
implement the uniform education system.  Whole exercise of amending <\/p>\n
the Act 2010 was carried out most hurriedly.   However, proceeding in <\/p>\n
haste itself cannot be a ground of challenge to the validity of a Statute <\/p>\n
though proceeding in haste amounts to arbitrariness and in such a fact-<\/p>\n
situation   the   administrative   order   becomes   liable   to   be   quashed.   The <\/p>\n
facts   mentioned   hereinabove   reveal   that   tenders   had   been   invited   on <\/p>\n
21.5.2011   for   publishing   the   text   books,   taught   under   the   old   system <\/p>\n
even prior to Cabinet meeting dated 22.5.2011.   Thus, a decision had <\/p>\n
already been taken not to implement the Common Education System. <\/p>\n
67.       If one crore  twenty lacs students are now to revert back to the <\/p>\n
multiple   syllabus   with   the   syllabus   and   textbooks   applicable   prior   to <\/p>\n
                                                                                    5<\/span><\/p>\n
2010   after   the   academic   term   of     2011-12   has   begun,   they   would   be <\/p>\n
utterly confused and would be put to enormous stress. Students can not <\/p>\n
be put to so much strain and stress unnecessarily. The entire exercise by <\/p>\n
the Government is therefore arbitrary, discriminatory and oppressive to <\/p>\n
students, teachers and parents.\n<\/p>\n<\/p>\n
                   The State Government should have acted bearing in mind <\/p>\n
that “destiny of a nation rests with its youths”.  Personality of a child is <\/p>\n
developed at the time of basic education during his formative years of <\/p>\n
life.     Their   career   should   not   be   left   in   dolorific   conditions   with <\/p>\n
uncertainty   to   such   a   great   extent.     The   younger   generation   has   to <\/p>\n
compete in global market.  Education is not a consumer service nor the <\/p>\n
educational institution can be equated with shops, therefore, “there are <\/p>\n
statutory   prohibitions   for   establishing   and   administering   educational <\/p>\n
institution   without   prior   permission   or   approval   by   the   authority <\/p>\n
concerned.”\n<\/p>\n<\/p>\n
       Thus,   the   State   Government   could   by   no   means   be   justified   in <\/p>\n
amending the provisions of Section 3 of the Act 2010, particularly in <\/p>\n
such   uncertain   terms.     Undertaking   given   by   the   learned   Advocate <\/p>\n
General to the High Court that the Act 2010 would be implemented in <\/p>\n
                                                                                    6<\/span><\/p>\n
 the academic  year 2012-13, cannot be a  good reason  to hold the Act <\/p>\n
 2011 valid.\n<\/p>\n
68         Submissions   advanced   on   behalf   of   the   appellants   that   it   is <\/p>\n
within   the   exclusive   domain   of   the   legislature   to   fix   the   date   of <\/p>\n
commencement of an Act,   and court has no competence to interfere in <\/p>\n
such a matter, is totally misconceived for the reason that the legislature <\/p>\n
in its wisdom had fixed the dates of commencement of the Act though in <\/p>\n
a   phased   manner.     The   Act   commenced   into   force   accordingly.     The <\/p>\n
courts   intervened   in   the   matter   in   peculiar   circumstances   and   passed <\/p>\n
certain orders in this regard also.  The legislature could not wash off the <\/p>\n
effect   of   those   judgments   at   all.     The   judgments   cited   to   buttress   the <\/p>\n
arguments,   particularly   in  A.K.   Roy   v.   Union   of   India   &   Anr.,  AIR <\/p>\n
1982 SC 710; Aeltemesh Rein v. Union of India & Ors., AIR<\/a> 1988 SC <\/p>\n
1768; Union of India v. Shree  Gajanan Maharaj Sansthan,<\/a> (2002) 5 <\/p>\n
SCC 44; and Common Cause v. Union of India & Ors., AIR<\/a> 2003 SC <\/p>\n
4493, wherein   it has  been  held  that a  writ   in the  nature  of mandamus <\/p>\n
directing the Central Government to bring a statute or a provision in a <\/p>\n
statute into force in exercise of powers conferred by Parliament in that <\/p>\n
statute cannot be issued, stand distinguished.<\/p>\n
                                                                                         6<\/span><\/p>\n
69.        As   explained   hereinabove,   the   Amendment   Act   2011,   to   the <\/p>\n
extent it applies to enforcement of Act 2010, nullified the judgment of <\/p>\n
the High Court dated 30.4.2010 duly approved by this Court vide order <\/p>\n
dated 10.9.2010.   Thus, we concur with the conclusion reached by the <\/p>\n
High Court in this regard.\n<\/p>\n<\/p>\n
70.        To summarise our conclusions:\n<\/p>\n<\/p>\n
(i)        The   Act   2010   was   enacted   to   enforce   the   uniform   education <\/p>\n
system in the State of Tamil Nadu in order to impart  quality education <\/p>\n
to   all   children,   without   any   discrimination   on   the   ground   of   their <\/p>\n
economic, social or cultural background.\n<\/p>\n<\/p>\n
(ii)      The   Act   itself   provided   for   its   commencement   giving   the <\/p>\n
academic years though, in phased programme i.e. for Standards I to VI <\/p>\n
from   the   academic   year   2010-2011;   and   for   other   Standards   from <\/p>\n
academic year 2011-2012, thus, enforcement was not dependent on any <\/p>\n
further notification.\n<\/p>\n<\/p>\n
(iii)     The   validity   of   the   Act   was   challenged   by   various   persons\/ <\/p>\n
institutions and societies, parents of the students, but mainly by private <\/p>\n
schools   organisations,   opposing   the   common   education   system   in   the <\/p>\n
entire State. The writ petitions were dismissed upholding the validity of <\/p>\n
the   Act.   However,   few   provisions,   particularly,   the   provisions   of <\/p>\n
Sections   11,   12   and   14   were   struck   down   by   the   High   Court   vide <\/p>\n
judgment   and   order   dated   30.4.2010.   The   said   judgment   of   the   High <\/p>\n
Court   was   duly   approved   by   a   speaking   order   of   this   Court   dated <\/p>\n
10.9.2010. Certain directions had been given in the said judgment by the <\/p>\n
                                                                                  6<\/span><\/p>\n
High Court which could have been complied with by issuing executive <\/p>\n
directions.   Moreover,   directions   issued   by   the   High   Court   could   be <\/p>\n
complied   with   even   by   changing   the   Schedule   as   provided   in   the <\/p>\n
judgment dated 30.4.2010 itself.\n<\/p>\n<\/p>\n
(iv)       Section   18   of  the   Act   2010   itself   enabled   the   Government   to <\/p>\n
issue   any   executive   direction   to   remove   any   difficulty   to   enforce   the <\/p>\n
statutory provisions of the Act 2010. The Act 2010   itself provided for <\/p>\n
an   adequate   residuary   power   with   the   government   to   remove   any <\/p>\n
difficulty in enforcement of the Act 2010, by issuing an administrative <\/p>\n
order.\n<\/p>\n<\/p>\n
(v)        Justification   pleaded   by   the   State   that   Amendment   Act   2011 <\/p>\n
was brought to avoid contempt proceedings as the directions issued by <\/p>\n
the  High   Court  could   not  be   complied   with,   is   totally   a   misconceived <\/p>\n
idea and not worth acceptance.\n<\/p>\n<\/p>\n
(vi)       The new government took over on 16.5.2011 and immediately <\/p>\n
thereafter, the Government received representations from various private <\/p>\n
schools\/organizations   on   17th\/18th  May,   2011   to   scrap   the   uniform <\/p>\n
education system. As most of   these representations were made by the <\/p>\n
societies\/organisations who had earlier challenged the validity of the Act <\/p>\n
2010   and   met   their   waterloo   in   the   hierarchy   of   the   courts,   such <\/p>\n
representations were, in fact, not even  maintainable and, thus could  not <\/p>\n
have been entertained by the Government.\n<\/p>\n<\/p>\n
(vii)      Before   the   first   Cabinet   meeting   of   the   new   Government     on <\/p>\n
22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books <\/p>\n
under   the   old   education   system.   It   shows   that   there   had   been   a   pre-<\/p>\n
determined   political   decision   to   scrap   the   Act   2010.   The   Cabinet   on <\/p>\n
                                                                                       6<\/span><\/p>\n
22.5.2011   had   taken   a   decision   to   do   away   with   the   Act   2010   and <\/p>\n
brought the Ordinance for that purpose.\n<\/p>\n<\/p>\n
(viii)       There was no material before the Government on the basis of <\/p>\n
which,   the   decision   not   to   implement   the   Act   2010   could   be   taken   as <\/p>\n
admittedly   the   Expert   Committee   had   not   done   any   exercise   of <\/p>\n
reviewing  the syllabus and textbooks till then. <\/p>\n
(ix)      The validity of the said decision was challenged by parents and <\/p>\n
teachers   and   various   other   organisations   before   the   High   Court   and <\/p>\n
interim   orders   were   passed.   It   was   at   that   stage   that   the   Bill   was <\/p>\n
introduced   in   the   House   on   7.6.2011   and   the     Amendment   Act   was <\/p>\n
passed and enforced with retrospective effect i.e. from 22.5.2011,   the <\/p>\n
date of  the decision of the Cabinet in this regard. <\/p>\n
(x)           The interim orders passed by the High Court were challenged <\/p>\n
before   this   Court   and   the   appeals   were   disposed   of  by   this   court   vide <\/p>\n
judgment and order dated 14.6.2011, issuing large number of directions <\/p>\n
including constitution of the   Expert Committee which would find out <\/p>\n
ways and means to enforce the common education system. <\/p>\n
(xi)         The   Secretary   of   School   Education   Department   had   filed <\/p>\n
affidavits before the High Court as well as before this Court pointing out <\/p>\n
that the Amendment Act 2011 was necessary in view of the fact that the <\/p>\n
Act 2010 was illegal  and unconstitutional.    However, the Secretary of <\/p>\n
School Education Department was  inadvertently made a member of the <\/p>\n
Expert   Committee   by   this   Court.     Though   her   inclusion   in   the <\/p>\n
Committee   was   totally   unwarranted   particularly   in   view   of   her   stand <\/p>\n
taken before the High Court that the Act 2010 was unconstitutional and <\/p>\n
illegal.\n<\/p>\n
                                                                                        6<\/span><\/p>\n
(xii)        The Secretary, to the Govt. of Tamil Nadu School Education <\/p>\n
Department,   who   had   been   entrusted   the   responsibility   to   plead   on <\/p>\n
behalf   of   the   State,   herself   had   approved   the   textbooks   and   fixed   the <\/p>\n
prices   for   those   books   of   Standards     VIIIth,     IXth    and   Xth    vide   G.O. <\/p>\n
dated 9.5.2011.\n<\/p>\n<\/p>\n
(xiii)     The members of the Expert Committee did not reject the text <\/p>\n
books and syllabus  in toto, however, pointed out certain  discrepancies <\/p>\n
therein and asked for rectification\/improvements  of the same.  <\/p>\n
(xiv)      The High Court as well as this Court upheld the validity of the <\/p>\n
Act 2010. Thus, it was not permissible for the legislature to annul the <\/p>\n
effect of the said judgments by the Amendment Act 2011, particularly <\/p>\n
so far as the Ist and VIth Standards are concerned. The list of approved <\/p>\n
textbooks had been published and made known to all concerned. Thus, <\/p>\n
the Act 2010 stood completely implemented so far these Standards were <\/p>\n
concerned.\n<\/p>\n<\/p>\n
(xv)       The Statement of Objects and Reasons of the Act 2011 clearly <\/p>\n
stipulated that legislature intended  to find out a better system of school <\/p>\n
education. Thus, the object has been to repeal the Act 2010.<\/p>\n
(xvi)      The legislature is competent to enact the revalidation Act under <\/p>\n
certain circumstances, where the statutory provisions are struck down by <\/p>\n
the   court,   fundamentally   altering   the   conditions   on   which   such   a <\/p>\n
decision is based, but the legislature cannot enact, as has been enacted <\/p>\n
herein, an invalidation Act, rendering a statute nugatory. <\/p>\n
(xvii)      The   School   Education   Department   of   Tamil   Nadu   on <\/p>\n
24.2.2011 called for private publishers to come out with the textbooks <\/p>\n
based   on   common   education   system,   and   submit   for   clearance   by   the <\/p>\n
                                                                                          6<\/span><\/p>\n
Department by 5.4.2011, as taken note of by the High Court in its order <\/p>\n
dated 10.6.2011. Thus, in such a fact-situation, it was   not permissible <\/p>\n
for the State to revert back to the old system at this advanced stage. <\/p>\n
(xviii)      Most   of   the   other   directions   given   by   the   High   Court   on <\/p>\n
30.4.2010,  stood   complied   with.    The   DTERT   had   been   appointed   as <\/p>\n
Academic Authority as required under Section 29 of the Act 2009, vide <\/p>\n
G.O. dated 27.7.2010.\n<\/p>\n
\n(xix)      The   material   produced   by   the   respondents   before   this   Court <\/p>\n
reveal that norms had been made known and the NCF 2005 was also <\/p>\n
implemented by issuing Tamil Nadu Curriculum 2009.<\/p>\n
(xx)         The   issue   of   repugnancy   of   the   Act   2010   with   the   Act   2009 <\/p>\n
merely remains an academic  issue as most  of the discrepancies  stood <\/p>\n
removed. Even if something remains to be done, it can be cured even <\/p>\n
now,   however,   such   a   minor   issue   could   not   be   a   good   ground   for <\/p>\n
putting   the   Act   2010   under   suspended   animation   for   an   indefinite <\/p>\n
period on uncertain terms.\n<\/p>\n
\n(xxi)        Undoubtedly,   there   had   been   a   few   instances   of   portraying <\/p>\n
the   personality   by   the   leader   of   political   party   earlier   in   power,   i.e. <\/p>\n
personal glorification, self publicity and promotion of his own cult and <\/p>\n
philosophy,   which   could   build   his   political   image   and   influence   the <\/p>\n
young   students,     particularly,   in   the   books   of   primary   classes.   Such <\/p>\n
objectionable material, if any, could be deleted, rather than putting the <\/p>\n
operation of the  Act 2010 in abeyance for indefinite period. <\/p>\n
(xxii)        As early as in April 2011, textbooks for  Xth  Standard were <\/p>\n
posted   in   the   official   website   of   School   Education   Department   and <\/p>\n
many students downloaded the same and started study of the same as <\/p>\n
the students, parents and teachers had been under the impression that <\/p>\n
                                                                                         6<\/span><\/p>\n
 for   Standards II to V and VII to X, common education system would <\/p>\n
 definitely   be   implemented   from   academic   year   2011-12.   Such   pious <\/p>\n
 hope of so many stakeholders could not be betrayed. Rolling back the <\/p>\n
 Act 2010 at this belated stage and withdrawal thereof even for Standard <\/p>\n
 I and VI would be unjust, iniquitous and unfair to all concerned.   <\/p>\n
 (xxiii)       The Amendment Act 2011, in fact, has the effect of bringing <\/p>\n
 back the effect of Section 14 of the Act 2010 which had been declared <\/p>\n
 ultra vires by the High Court for the reason that the Board could not be <\/p>\n
 given binding directions by the State Government.<\/p>\n
(xxiv)      Even if a very few schools could not exercise their choice of <\/p>\n
multiple text books, it could not be a ground of scrapping the Act 2010. <\/p>\n
Steps should have been taken to remove the discrepancy. <\/p>\n
(xxv)           Passing   the   Act   2011,   amounts   to   nullify   the   effect   of   the <\/p>\n
High   Court   and   this   Court’s   judgments   and   such   an   act   simply <\/p>\n
tantamounts to subversive of law.\n<\/p>\n<\/p>\n
 71.        In   view   of   the   above,   the   appeals   are   devoid   of   any   merit. <\/p>\n
 Facts   and   circumstances   of   the   case   do   not   present   special   features <\/p>\n
 warranting any interference by this Court.\n<\/p>\n<\/p>\n
                        The appeals are accordingly dismissed.   The appellants are <\/p>\n
 directed to enforce the High Court judgment impugned herein within a <\/p>\n
 period of 10 days from today.\n<\/p>\n
                                                                                          6<\/span><\/p>\n
                             ……………..\n<\/p>\n
…………J.\n<\/p>\n
                                   (J.M.\n<\/p>\n
  PANCHAL)<\/p>\n
                                   …………\n<\/p>\n
  ……………..J.\n<\/p>\n
                             (DEEPAK <\/p>\n
  VERMA)<\/p>\n
                                   …………\n<\/p>\n
  ……………..J.\n<\/p>\n
  New Delhi,                       (Dr.   B.S. \n\n  CHAUHAN)\n\n  August 9, 2011\n\n\n\n\n\n                                         6<\/span>\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of T.Nadu & Ors vs K Shyam Sunder & Ors on 9 August, 2011 Author: …………J. Bench: J.M. Panchal, Deepak Verma, B.S. Chauhan 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-33748","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of T.Nadu & Ors vs K Shyam Sunder & Ors on 9 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-t-nadu-ors-vs-k-shyam-sunder-ors-on-9-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of T.Nadu & Ors vs K Shyam Sunder & Ors on 9 August, 2011 - 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