IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30..04..2010 C O R A M The Honourable Mrs. Justice Prabha Sridevan and The Honourable Mr. Justice P.P.S. Janarthana Raja Writ Petition Nos.3051 to 3056, 3386, 3387, 3398, 3410, 3431, 3516, 3603 and 3982 of 2010 KRISHNAGIRI DISTRICT PRIVATE SCHOOLS ASSOCIATION, KRISHNAGIRI NO.133/31 A.K.THEATRE ROAD, CO-OPERATIVE COLONY KRISHNAGIRI REP. BY ITS SECRETARY D.SOUNDARA RAJU @ GURUJI PANDIAN. PETITIONER IN WP 3051/2010 DHARAMPURI MAVATTA NURSERY- AND PRIMARY MELNILLAI PALLIKALIN SANGAM ROTARY UGAL THUTHALAM KRISHNAGIRI SRI VIJAY VIDYALAYA BOY'S MATRICULATION SCHOOL, PENNAGARAM ROAD, DHARMAPURI REP.BY ITS PRESIDENT D.C.ELANGOVAN PETITIONER IN WP 3052/2010 ASSOCIATION OF MANAGEMENTS OF NURSERY PRIMARY AND MATRICULATION SCHOOLS,COIMBATORE SRI GOPALAN NAIDU HR. SEC. SCHOOL PEELAMEDU-COIMBATORE 641 004 PRESIDENT R.VISALAKSHI. PETITIONER IN WP 3053/2010 KANCHEEPURAM DISTRICT SELF FINANCING SCHOOLS ASSOCIATION CHROMPET, CHENNAI-44 REP BY ITS SECRETARY S.PRINCEBABU RAJENDRAN PETITIONER IN WP 3054/2010 THANJAVUR DISTRICT MATRIC AND MATRICULATION HR.SEC.SCHOOLS ASSOCIATION.20/1289 KAMARAJAR ST, EAST GATE,THANJAVUR -613 001 REP BY ITS PRESIDENT K.PANNEERSELVAM. PETITIONER IN WP 3055/2010 https://hcservices.ecourts.gov.in/hcservices/ THIRUVARUR DISTRICT MATRIC AND MATRIC HIGHER SECONDARY SCHOOLS FEDERATION, THIRUVARUR REP BY ITS PRESIDENT N.ASOKAN PETITIONER IN WP 3056/2010 THENI DISTRICT SELF FINANCE SCHOOLS ASSOCIATION REP BY SECRETARY MR.J.VEDHA PETITIONER IN WP 3386/2010 ASSOCIATION OF MATRICULATION SCHOOLS & THEIR MANAGEMENTS IN TAMILNADU AND PONDICHERRY REP BY ITS GENERAL SECRETARY S.K.VENKATTASSALA PANDIAN PETITIONER IN WP 3387/2010 KARUR DISTIRCT PRIVATE SCHOOLS ASSOCIATION (REGISTRATION NO.19/2007) REP.BY ITS CO-ORDINATOR R.RAJENDIRAN PETITIONER IN WP 3398/2010 10. 1.H.ADAIKAL AROKIARAJ 2.MRS RESHMI 3.MRS.ANITHA THOMAS 4.MRS.KAALIARASI ...Petitioners in W.P.3410/10 11. 1. R.SANKAR GANESH 2 R.MOHANKUMAR 3 M.VENKATACHALAPATHY 4 R.SENTHILKUMAR 5 K.SUBRAMANI 6 G.MARIMUTHU 7 K.R.PERIYA KARUPPAN 8 V.K.MURUGESAN 9 N.KESAVAN 10 M.KUMARAVEL 11 V.J.KRISHNAKUMAR 12 S.VIJIES KUMAR 13 P.SATHTYAMOORTHI 14 R.SARAVANAN 15 B.ANANDHAKRISHNAN 16 S.P.LAKSHMANA KUMAR 17 B.THIRUGNANAM 18 L.PRADEEP KUMAR 19 P.ANNADURAI 20 P.RAJALAKSHMI ...Petitioners in W.P.3431/2010 https://hcservices.ecourts.gov.in/hcservices/ 12. T.V.S.VIDHYA MANDHIR NURSERY AND PRIMARY SCHOOL REP.BY ITS CORRESPONDENT T.THIRUVENKADASAMY ..PETITIONER IN W.P.3516/10 13. TAMILNADU NURSERY PRIMARY MATRICULATION & HIGHER SECONDARY SCHOOLS ASSOCIATION (REGD) REG.NO.138 OF 1991 REP.BY ITS GENERAL SECRETARY K.R.NANDAKUMAR ... PETITIONER IN W.P.3603/10 14.THE KANYAKUMARI DISTRICT ASSOCIATION OF MATRICULATION SCHOOLS REP BY ITS GENERAL SECRETARY P.JOHN WILSON. ...PETITIONER IN W.P.3982/10 Vs. 1.THE STATE OF TAMIL NADU, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, SCHOOL EDUCATION DEPARTMENT, FORT ST. GEORGE, CHENNAI-9. ...1ST RESPONDENT IN WP.3051, 3052, 3053, 3054, 3055, 3056, 3386, 3387, 3398, 3410, 3431, 3516, 3603, 3982/10 2.THE DIRECTOR OF TAMIL NADU MATRICULATION SCHOOLS, COLLEGE ROAD, CHENNAI-6. ...2ND RESPONDENT IN WP.3051, 3052, 3053, 3054, 3055, 3056, 3386, 3387, 3410, 3431, 3603, 3982/10 3. NAVABHARATH MATRICULATION SCHOOL, REP. BY ITS CORRESPONDENT P.B. PRINCE GAJENDRA BABU, 14-A, SOLLAIAPPAN STREET, T. NAGAR, CHENNAI – 17. ...3RD RESPONDENT IN WP.3053, 3054, 3055, 3056, 3386, 3387, 3398, 3410/10 R3 IMPLEADED AS PER THE ORDER OF THE COURT DATED 4.3.2010 AND MADE IN MP.NO.3/2010 4. THE STATE COMMON BOARD OF SCHOOL EDUCATION, REP.BY ITS CHAIR PERSON AND EX-OFFICIO DIRECTOR OF SCHOOL EDUCATION, CHENNAI-6 ...2ND RESPONDENT IN WP.3398, 3516/10 https://hcservices.ecourts.gov.in/hcservices/ 5. THE STATE SECRETARY TO GOVT., SCHOOL EDUCATION OF TAMILNADU, REP BY ITS PRINCIPAL DEPT., CHENNAI 9. ...I RESPONDENT IN WP.3431,3603/10 For Petitioners : Mr. R. Krishnamoorthy, Senior Counsel in W.P.3051/2010 for Mr. V.P. Sengottuvel in W.P.3052/2010 : Mr. R. Muthukumarasamy, Senior Counsel for Mr. V.P. Sengottuvel in W.Ps.3053 to : Mr. N.R. Chandran, Senior Counsel 3056/2010 for Mr. Paramasiva Doss in W.Ps.3398 and : Mr. K. Doraisami, Senior Counsel 3516/2010 for M/s. Muthumani Doraisami in W.Ps.3386, 3387 : Mr. S. Silambanan, Senior Counsel and 3982/2010 for M/s. Profex Associates in W.P.3410/201 : Mr. S. Silambanan, Senior Counsel for Mr. K. Sathish in W.P.3431/2010 : Mr. S. Silambanan, Senior Counsel for Mr. S. Kalimuthu in W.P.3603/2010 : Mr. K. Venkatachalapathy, Senior Counsel for Mr. M. Sriram For Respondents-1&2 : Mr. P. Wilson, Addl. Advocate General-III in all W.Ps. Assisted by Mr. G. Sankaran, Spl. Govt. Pleader (Education), Mr. S. Naganathan, Addl. Govt. Pleader (Education) and Ms. Dakshayani Reddy, Govt. Advocate For Respondent-3 in W.Ps.3053 to 3056, 3386, 3387, 3398 and 3410/2010 : Mr. P.B. Suresh Babu W.P.No.3051/2010,3052/10,3053/10,3055/10,3056/10,3386/10,3387/10, 3398/10, 3982/10: Writ Petitions filed under Article 226 of the Constitution of India, to issue a writ of Declaration declare that the Tamil Nadu Uniform System of School Education Act 2010 as unreasonable unconstitutional ultra vires and violative of the right to establish and administer Educational Institutions guaranteed under Art 14 Art 19(1)(g) and 26 and impinges the rights of minorities as under Art.14 https://hcservices.ecourts.gov.in/hcservices/ 25,26,29 and 30 of The Constitution of India the same amounts to unreasonable restrictions on the part of the Institutions to have their own system of education. W.P. 3410/2010, 3431/2010 : Writ petition filed under Article 226 of the constitution of India to issue a writ of declaration declaring that the Tamilnadu Uniform System of School Education Act 2010 as unreasonable unconstitutional ultravires and violative of the right to establish and administer Educational Institutions guaranteed under Art. 19 (l)(g) and 26 and to the minorities under Art.30 of the constitution of India. WP 3054 OF 2010: Writ petitions filed under article 226 of the constitution of India to issue a writ of declaration declaring the Tamilnadu Uniform System of School Education Act 2010 as irrational unconstitutional, ultravires and violative of the right of private educational institutions including minority institutions to establish and administer Educational Institutions guaranteed under the constitution of India . W.P.No.3516 of 2010: Writ petition filed under Article 226 of the constitution of India, to issue a Writ of declaration, declaring Sections 3,4,5,9,11 and 14 of the Tamilnadu Uniform System of School Education Act, 2010 (Tamilnadu Act 8 of 2010) are illegal, ultra vires, unconstitutional and unenforceable in so far as they relate to the petitioner herein. W.P.No.3603 of 2010: declaring that the Tamilnadu Uniform system of School Education Act 2010 [Act 8 of 2010] as unconstitutional, ultravires and violative of the fundamental rights of the petitioner to establish and administer Educational Institutions guaranteed under Art.19(1)(g), 26 and 30 of the Constitution of India. O R D E R Prabha Sridevan, J. The "Samacheer Kalvi Thittam", i.e., The Uniform System of School Education Act, 2010 (Act 8 of 2010), hereinafter referred to as 'the Act', has been enacted to introduce a common syllabus, textbooks and examination system to the four streams of education in the State. According to the State, this will achieve social justice and introduce quality education; and it is for the benefit of the children. According to the writ petitioners, who are Matriculation Schools, this Act is unreasonable and not in the interest of the child. The most important persons, the children, were not there to express their views and so, with their best interests in mind, we have examined this issue. 2. The petitioners in most of the writ petitions are Private Schools Associations from various Districts, while some writ https://hcservices.ecourts.gov.in/hcservices/ petitions are filed by individuals too. Only the Matriculation Schools contend that they are aggrieved. There is no challenge from the other two streams, viz. the Anglo-Indian Schools and the Oriental Schools. The grievance of the writ petitioners was expressed by learned senior counsel Mr. R. Krishnamoorthy, Mr. N.R. Chandran, Mr. K. Doraisami, Mr. R. Muthukumarasamy Mr. M. Venkatachalapathy and Mr. S. Silambanan. The State was defended by the learned Additional Advocate General, Mr. P. Wilson. In some of the writ petitions, a third party filed impleading petitions supporting the State, which have been ordered. 3. According to the petitioners, the Act interfered with the right of the children to choose the preferred system of education; it interfered with the right of the parents to choose which system of education was suitable for their children; it interfered with a teacher's' independence, imagination and inventiveness in adapting and adopting teaching methods which were best for her class. Learned senior counsel submitted that the professed object of the Act, which is to ensure social justice, will not be achieved, as "levelling down" the education pattern by making the system uniform cannot achieve social justice. If the State was really interested in achieving social justice, it should uplift the ones who are lagging behind instead of dragging down the ones who are superior. This is exactly what the State will achieve by the Act, and this has also been made clear in the counter affidavit filed by the State, where it is stated that the Act will ensure that the prevailing gaps in quality will be eliminated and there will not be islands of excellence or branded dullards among children, which shows that the islands of excellence will be brought down to a lower level. It was submitted that in the present days of global competition, when the children of the State are grappling to meet those challenges, it is indeed unfortunate that the State has brought such an arbitrary Act, which will in effect blunt the children's skills, as a result of which they will not be in a position to meet the global challenge. According to them, the Act has made serious inroads in the matter of children's education. The Act does not even give the schools the option to choose textbooks. The regimentation which the Act seeks to bring in, violates the right of the parent and that of the child, and any attempt on the part of the schools to impart an individualistic type of education will be met with punishment in view of the penal provisions contained in the Act. The provisions of the Act have no nexus to the objects that it sets out to achieve. The State had declared that it will use the National Curriculum Framework-2005 ('NCF' in short), but many of the provisions of the present Act are contrary to the principles set down in the NCF. The NCF stresses a "decentralised and participatory manner of education", which is exactly opposite to what the State has introduced by the Act. The NCF has suggested that there should be multiple textbooks, the choice of which is left to the teachers, but the Act is contrary to this. According to the learned senior counsel, these are only some of the https://hcservices.ecourts.gov.in/hcservices/ examples to show how the Act is contrary to the framework which it professes to fall in line with. Nowhere in the counter has the State said that there is any major deficiency in the system followed by the schools at present. It that is so, then there is no justification to interfere with the schools' autonomy and the schools' right to decide how they will impart education and transact with the children. Limiting the choice of systems of education amounts to violation of Article 14 of the Constitution of India. According to the learned senior counsel, the popularity and growth of private schools is a clear indicator of the doubtful quality of Government Schools. If the Government Schools had met with the standards that the parents expect for their children, the Matriculation Schools would not have proliferated. The reason for doing away with the existing system does not pass the constitutional tests. There has to be a consultation process before introducing any new system and school children are too precious to be treated as Guinea Pigs and it will really affect the growth of the children. The system that is sought to be introduced will hinder the development of individuality of the children. The examination pattern itself shows that it will reduce the quality. Three Science subjects are now combined into a single Science paper. The schools cannot be treated like factories producing uniform toys. The State must realise that the schools should produce individualistic children capable of rising to the challenges of life. The Act will not achieve this. When even the method of teaching is fixed, as is sought to be done by the Act, the teachers will not have any inclination or inspiration to have a standard of excellence, and with the provisions for punishment looming large, their teaching capacity will be severely curtailed. According to the learned senior counsel, Section 4 of the Act must be quashed forthwith, since it runs contrary to the Full Bench judgment of this Court in Tamil Nadu Tamil & English Schools Association vs. State of Tamil Nadu, 2002 (II) C.T.C. 344, and the issues raised in paragraph 25 of the counter are contrary to the Full Bench judgment. 4. All the learned senior counsel submitted that while the State has the power to legislate on this subject, the unconstitutionality springs from the unreasonableness and irrationality. It was submitted that the attempt to unify the four systems cannot be sustained since unequals cannot be treated as equals and it would run contrary to the promise of Article 14. As per Section 4 of the Act, even for adopting English or Tamil as the medium of instruction, approval will be required. It was submitted that the since both the Civil Procedure Code and the Criminal Procedure Code are entries in List-III, the State should have obtained the President's assent as per Article 254(2) of the Constitution, especially when the Act intends to incorporate sections relating to bar of suits or initiation of criminal proceedings and without such assent, it is void. The Act is contrary to the provisions of the Convention on the Rights of the Child and Convention against Discrimination in Education, as our Supreme Court has drawn from such International https://hcservices.ecourts.gov.in/hcservices/ Conventions while interpreting our Fundamental Rights, as in Vishakha vs. State of Rajasthan, A.I.R. 1997 S.C. 3011. It was submitted that by Regulation 7 of the Code of Regulations for Matriculation Schools in Tamil Nadu, the State assured that the Matriculation Schools will continue to be free as hitherto, to innovate with regard to their curriculum, and this freedom was a legitimate expectation that they had, which was also affirmed in the Full Bench judgment cited supra and now, the State has transgressed its limits. The word "norms" used in the Act is vague and when violation of the norms visits the school with harsh fine, then the penal provisions have to be struck down for vagueness since the norms which have not been clearly specified. Article 45 and Article 51 of the Constitution are violated by this Act. Learned senior counsel submitted that it may be contended by the State that ours is the only State which has hitherto prescribed school syllabus for matriculation schools, and the syllabus has been revised as recently as 2005, for which there has been no complaint and therefore, it is not as if the State has suddenly usurped any power. But the learned senior counsel countered this by submitting that all along, the Regulations had been only recommendatory and not forced down the "throats of the schools". The Schools' right to engage in co-curricular activities is curbed. When computer education has become a necessity for every individual, the syllabus introduced in the Act does not include computer education. "The fundamental postulate of personal liberty excludes the power of the State to standardise and socialise its children by forcing them to attend public schools only. A child is not a mere creature of the State" – vide The Ahmedabad St. Xavier's College Society vs. State of Gujarat, (1974) 1 S.C.C. 717. But the State has actually violated this, by standardising the system. The State has misunderstood quality education to mean stultifying educational progress. It is only at the early age of the child that it is possible for her to assimilate and learn as many subjects as are offered and this Act interferes with that right. The learned senior counsel also submitted that now that the Central Act, viz. The Right to Education Act ('RTE Act' in short) has come into force with effect from 1.4.2010, the impugned State Act would have to give way to the Central Act, in view of Article 254(1) of the Constitution. Now the entire field of elementary education is occupied by the RTE Act and the State cannot lay down the syllabus nor specify norms nor can it punish schools for not complying with the Act so long as the schools are in conformity with the RTE Act. It was submitted that in the Preamble to the Act, it is stated that the four streams of education "are not uniform". The fact that they are not uniform does not mean that they do not provide quality education. Therefore, the fact that they are not uniform cannot justify the introduction of the present system which professes to ensure quality education. Diverse systems of education can equally provide quality education and therefore, the object has no nexus with the provisions of the Act. It is very doubtful whether the object sought to be achieved will become a reality merely because the Act has been introduced. There is also https://hcservices.ecourts.gov.in/hcservices/ one other factor, i.e., if the Act really intends to achieve a common system of education, then it could not have excluded the other systems which still exist, viz. CBSE, ICSC, Baccalaureate and the children studying under those systems. If these Boards are also not brought under the scheme, then the object of social justice will remain on paper. It was submitted that the teacher will have to adapt the method of teaching depending on whether the school is in a rural area, or an urban area or a tribal area so that it is fine tuned to the local needs, but this Act's rigid formula will defeat the prime object, which is educating the child. The State's professed object can be achieved only after due deliberation, research, collaboration and consultation with experts in the field, but without any of these, the Act has been suddenly introduced. The Act ignores the psychological impact of the child which has been referred to in the Full Bench judgment cited supra. Though it is stated that there was a consultative process, in actual fact, the invitees to the meeting were only "informed" but not consulted. Even the counter affidavit mentions only two dates with regard to the consultation. Two dates would not be sufficient for such an ambitious enterprise and before really examining the issue from all perspectives, the State has brought the Act in haste. It was submitted that as children want to pursue higher education, students of Matriculation Schools find it easier to score marks and their performance in competitive examinations is much better than the students who have studied in State Boards. Now this Act will take away the edge which the Matriculation students enjoyed in the past. The State ought to have brought the State Board students to the level of Matriculation students, instead of which, they are reducing the Matriculation students to a lower level. Learned senior counsel relied on several judgments, which will be dealt with later. 5. In response, the learned Additional Advocate General submitted that none of the objections raised in the writ petitions can be sustained. The legislative power of the State is found in Entry 25 of List-III of the Constitution. The object of the Act is to ensure that there is no disparity and division amongst children, so that a child who had studied in a rural school would feel no inferior to a child who studied in an urban school, since the method of education would be uniform. He submitted that the objection raised by the schools itself is questionable since at the stage of Public Examination, all the streams coalesce into one. For Plus One and Plus Two, i.e., XI and XII Standards, it is only the State which decides the syllabus and it is the State which conducts the examination and this position has been so right from 1978. When the students belonging to the various streams have had no complaints in this regard all along, the bona fides of the present objection itself is to be examined. He submitted that the petitioners are not really advancing the cause of the child, but their personal interest. He also submitted that out of the four streams, it was only the Matriculation system which has raised this objection. No Anglo- https://hcservices.ecourts.gov.in/hcservices/ Indian School or Oriental School has filed any writ petition. He submitted that it is not as if this Act has been brought into existence in haste. Soon after Independence, several Commissions and Committees had deliberated on this issue and they had recommended a common system of education; he referred to the Kothari Commission, the Ramamurthy Report and the Yashpal Committee Report. He submitted that the Act is in conformity with the NCF. He submitted that since the disparity in the education and the heavy load that was imposed on the children, both physical and otherwise, came to the attention of the Government, the Government constituted a Committee under the Chairmanship of Thiru. Muthukumaran, the former Vice Chancellor of the Bharathidasan University, to examine the implementation of the Uniform System of Education. The Committee examined all the issues and offered its recommendations. Thereafter, a One Man Committee was constituted under Thiru. M.P. Vijayakumar, I.A.S. (Retired). He looked into the Muthukumaran Report and he also submitted his recommendations. He headed a team of educationalists which visited the States of Kerala, Karnataka, Gujarat and Maharashtra and reviewed the system that was in vogue in those States and it was after much deliberation that the idea was accepted. He submitted that it is unfair to suggest that without any consultation, without any research and very casually, the Government has brought this system into vogue. He submitted that the Matriculation Schools choose their textbooks in an arbitrary manner and the reasons for their choice are not clear. The Government appointed a Committee to examine the various textbooks which are now used in Matriculation Schools and many of them were found wanting with regard to crucial aspects. He submitted that, that is why in Section 3 of the Act, the Government had laid down the norms for imparting instructions and norms for conducting examinations. He submitted that the present system of education is a colonial import and by referring to the ancient system of education that prevailed in this country, which was individualistic and which developed the potential of each child, submitted that there can be no complaint when a system of education which has its values based in the Constitution of this country is sought to be introduced. He submitted that the textbooks have been chosen with great care by a committee of experts whose credentials are beyond question. He also submitted that there have been various reports regarding the heavy load which a school child bears, both because of the nature of the syllabus and also because of the books the child has to carry. He referred to the negative impact this load has on the child. Learned Additional Advocate General submitted that in no other State are there so many systems of education. All the other States have only two Boards, the State Board and the Central Board and obviously this pattern has not been prejudicial to the interests of the child. The mere fact that historically this State has had four streams of education does not mean that the State, with its avowed object of ensuring social justice and quality education, cannot bring in a uniform, quality based system of education. He submitted that the Muthukumaran Committee had studied all the different streams and https://hcservices.ecourts.gov.in/hcservices/ found that they are basically the same and therefore, the uniform system that is now sought to be introduced is only a question of adjustment and modulation of the existing system and not a system where quality is sacrificed. He referred to the affidavit filed where the textbook for each class has been assessed. Learned Additional Advocate General submitted that by G.O. Ms. No.159 dated 8.9.2006, the Dr. S. Muthukumaran Committee was constituted, which consisted of representatives of Matriculation Schools, Oriental Schools and Anglo-Indian Schools; so it was only after a due consultative process that the recommendations were made. He submitted that therefore there can be no justification for any complaint. He submitted that this Act is not contrary to the RTE Act. The RTE Act speaks of