Case: Siddhu Matriculation Hr. Secondary School Vs. K. Shyam Sunder and Ors

A. In the State of Tamil Nadu, there had been different Boards imparting basic education to students upto 10th standard, namely, State Board, Matriculation Board, Oriental Board and Anglo-Indian Board. Each Board had its own syllabus and prescribed different types of textbooks. In order to remove disparity in standard of education under different Boards, the State Government appointed a Committee for suggesting a uniform system of school education. The said Committee submitted its report on 4.7.2007. Then another Committee was appointed to implement suggestions/recommendations made by the said Committee.B. During the intervening period, The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter called the Act 2009), enacted by the Parliament, came into force with effect from 1.4.2010 providing for free and compulsory education to every child of the age of 6 to 14 years in a neighbourhood school till completion of elementary education i.e. upto 8th standard. The Act 2009 provided that curriculum and the evaluation procedure would be laid down by an Academic Authority to be specified by the appropriate State Government, by issuing a notification. The said Academic Authority would lay down curriculum and the evaluation procedure taking into consideration various factors mentioned under Section 29 of the Act 2009. Section 34 of the Act 2009 also provided for the constitution of a State Advisory Council consisting of maximum 15 members. The members would be appointed from amongst persons having knowledge and practical experience in the field of elementary education and child development. The State Advisory Council would advise the State Government on implementation of the provisions of the Act 2009 in an effective manner.C. The Cabinet of the State of Tamil Nadu took a decision on 29.8.2009 that it will implement the uniform system of school education in all schools in the State, form a Common Board by integrating the existing four Boards, and will introduce textbooks providing for the uniform syllabus in Standards I and VI in the academic year 2010-11 and in Standards II to V and VII to X in the academic year 2011-12. In order to give effect to the said Cabinet decision, steps were taken on administrative level and thus, the Tamil Nadu Uniform System of School Education Ordinance, 2009 was issued on 27.11.2009 which was published in the official Gazette on 30.11.2009. The Ordinance was subsequently converted into the Act 2010 on 1.2.2010. The Act 2010 provided for the State Common Board of School Education (hereinafter called the Board); imposition of penalties for wilful contravention of the provisions of the Act or the Rules made thereunder (Section 11); offences by companies in the same regard (Section 12); and it also enabled the State Government to issue directions on policy matters to the Board from time to time which would be binding on the Board (Section 14).D. Section 3 of the Act 2010 provided that the Act would commence:(a) in Standards I & VI from the academic year 2010-11; and(b) in Standards II to V and VII to X from the academic year 2011-12.Sub-section(2) thereof required every school in the State to follow the norms fixed by the Board for giving instruction in each subject and follow the norms for conducting examination as may be specified by the Board. The Board approved the curriculum and textbooks for Standards I and VI on 22.3.2010 and the books were printed in view of the consequential order dated 31.3.2010 by the Tamil Nadu Textbook Corporation.E. As many as 14 writ petitions were filed in the High Court of Madras challenging the validity of various provisions of the Act 2010. A Division Bench of the High Court vide judgment and order dated 30.4.2010 held that the provisions of Sections 11, 12 and 14 were unconstitutional and struck down the same while the Court issued elaborate directions for implementation of the common syllabus and the textbooks for Standards I and VI by the academic year 2010-11; and for all other Standards by the academic year 2011-12 or until the State makes the norms and the syllabus and prepares the textbooks in advance for the same. Further directions were issued by the Court to the State Government to bring the provisions of the Act 2010 in consonance with the Act 2009 and notify the Academic Authority and the State Advisory Council under the Act 2009. The State was also directed to indicate approved textbooks from which private unaided schools could choose suitable for their schools. The Court further directed the Government to amend the Act to say that the common/uniform syllabus was restricted to five curricular subjects, namely, English, Tamil, Mathematics, Science and Social Science which the schools were bound to follow, but not in respect of the co-curricular subjects. The aforesaid judgment was duly approved by this Court vide order dated 10.9.2010 while dismissing large number of SLPs filed against the same by a speaking order.F. In order to implement the Act 2010 and the judgment of the High Court duly approved by this Court, the State Authorities referred the enumerated components of the curriculum in respect of Classes II to V and VII to X to an Expert Committee for its opinion. The curriculum and syllabus prepared for uniform system of school education as well as the textbooks for Classes II to V and VII to X for uniform system of school education in Government schools and Government aided schools were approved by the Board.G. However, there was a change of State Government following the general elections of the State Assembly, on 16.5.2011. After completing the formalities, the Government amended the Act 2010 by the Amendment Act 2011, by which it substituted Section 3 by a new Section providing that the schools would follow the common syllabus as may be specified by the Board for each subject in Standards I to X from such academic year as may be notified by the Government in the official Gazette. The Government may specify different academic years for different Standards. The amendment also omitted Sections 11, 12 and 14 from the Act 2010 since those Sections had been struck down by the High Court as unconstitutional.H. New academic session was to commence on 1.6.2011 and the Amendment Act 2011 came into force on 7.6.2011. A large number of writ petitions were filed challenging the said amendment. A Division Bench of the High Court vide order dated 10.6.2011 stayed the operation of the Amendment Act 2011, but gave liberty to the State Government to conduct a detailed study of the common syllabus and common textbooks and further clarified that the State Government would be entitled to add, modify, substitute or alter any chapter, paragraph or portion of the textbooks etc. and further permitting the managements of private schools to submit their list of books for approval to the Government.I. The aforesaid interim order passed by the High Court on 10.6.2011 was challenged before this Court and all those matters stood disposed of vide judgment and order dated 14.6.2011 by which this Court modified the said interim order inter-alia, directing constitution of a committee of experts, which the State Government had already undertaken to appoint, to examine ways and means for implementing the uniform education system, common syllabus, and the textbooks which were to be provided for Standards II to V and VII to X under the Act 2010. It requested the High Court to determine if such textbooks and the amended syllabus would be applicable to Standards II to V and VII to X keeping in view the provisions of the amended Act.J. In pursuance of the said order, an Expert Committee was constituted and after having several meetings, a joint report was submitted to the High Court. The High Court after considering the said report, vide judgment and order dated 18.7.2011, found fault with the report of the Expert Committee and struck down Section 3 of Amendment Act 2011 with a direction that the State shall distribute the textbooks printed under the uniform system of education to enable the teachers to commence classes, and complete distribution of textbooks on or before 22.7.2011. Hence, these appeals.

Reasoning:
The Government has to rise above the nexus of vested interests and nepotism and eschewhas consistently been held by this Court that the doctrine of malafide does not involve any question of bonafide or malafide on the part of legislature as in such a case, the Court is concerned to a limited issue of competence of the particular legislature to enact a particular law. If the legislature is competent to pass a particular enactment, the motives which impelled it to an act are really irrelevant. On the other hand, if the legislature lacks competence, the question of motive does not arrive at all. Therefore, whether a statute is constitutional or not is, thus, always a question of power of the legislature to enact that Statute.Motive of the legislature while enacting a Statute is inconsequential: "Malice or motive is beside the point, and it is not permissible to suggest parliamentary incompetence on the score of mala fides."Thelegislative competence can be adjudged with reference to Articles 245 and 246 of the Constitution read with the three lists given in the Seventh Schedule as well as with reference to Article 13(2) of the Constitution which prohibits the State from making any law which takes away or abridges the rights conferred by Part-III of the Constitution and provides that any law made in contravention of this Clause shall, to the extent of contravention beorder to test the constitutional validity of the Act, where it is alleged that the statute violates the fundamental rights, it is necessary to ascertain its true nature and character and the impact of the Act. Thus, courts may examine with some strictness the substance of the legislation and for that purpose, the court has to look behind the form and appearance thereof to discover the true character and nature of the legislation. Its purport and intent have to be determined. In order to do so it is permissible in law to take into consideration all factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for theCourt lacks expertise especially in disputes relating to policies of pure academic educational matters. Therefore, generally it should abide by the opinion of the Expert Body. The Constitution Bench of this Court in The University of Mysore & Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491 held that "normally the courts should be slow to interfere with the opinions expressed by the experts". It would normally be wise and safe for the courts to leave such decisions to experts who are more familiar with the problems they face than the courts generally canis a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud." An authority cannot be permitted to evade a law by "shift orthe legislature cannot carry out each and every function by itself, it may be necessary to delegate its power for certain limited purposes in favour of the executive. Delegating such powers itself is a legislative function. Such delegation of power, however, cannot be wide, uncanalised or unguided. The legislature while delegating such power is required to lay down the criteria or standard so as to enable the delegatee to act within the framework of the statute. The principle on which the power of the legislature is to be exercised is required to be disclosed. It is also trite that essential legislative functions cannot beinstant case requires to be examined in the light of the aforesaid settled legal propositions, though it may not be necessary to deal with all these issues in great detail as the High Court has already dealt with the same elaborately.56. In the instant case, as the Expert Committee had submitted a report and most of the members had given their opinion on different issues and as we have also examined the reports, it is evident from the same that each member had pointed out certain defects in the curriculum as well as in the text books etc. There was no unanimity on any particular issue, as each member has expressed a different opinion on differentHigh Court, after taking note of the counter affidavit filed by the present appellants labeling the Act 2010 as illegal, irrational and unconstitutional, after it had already undergone an intense judicial scrutiny and held to be Constitutionally valid by the High Court vide judgment and order dated 30.4.2010 and by this Court vide judgment and order dated 10.9.2010, the question that arises for consideration is as to whether it was permissible for the Secretary of the Education Department to label the Act as illegal and unconstitutional. Does such a conduct amount to sitting in appeal against the judgments of the High Court as well as of this Court or does it not amount to an attempt to take away the effect of the judgments of the High Court as well of this Court ?59. The High Court has taken note of these pleadings taken by the State authorities :"From a perusal of the counter affidavit filed by the Secretary, School Education Department, it is manifestly clear that the Government has taken the consistent stand that the policy formulated by the previous Government by implementing the Uniform Syllabus System was illegal and that the amount of Rs. 200 crores spent for printing the textbooks under the new syllabus was because of the wrong policy......" (Emphasis added)The report submitted by the Expert Committee, in fact, did not contain any collective opinion. All the members have expressed their different views and most of the members had approved the contents of the text books, in general, pointing out certain defects which could be cured by issuing corrigendums or replacements etc.60. Section 18 of the Act 2010 enables the State Government to remove difficulties, if any, in implementation of the said Act. The provisions thereof read as under:"If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order published in the Tamil Nadu Government Gazette, make such provisions, not inconsistent with the provisions of this Act as appears to them to be necessary or expedient for removing the difficulty;..."Therefore, the amendment itself is totally unwarranted. If the State Government was facing any difficulty, the same could have been removed by issuing a Government order under Section 18 of the Act which conferred all residuary powers on it.The nature of the defect as canvassed by the State counsel is reflected in the pleadings that indicates an undesirable inclusion of certain chapters that do not subserve the purpose of a uniform standard and multicultural educational pattern. The contention appears to be that such material may damagingly divert the mind of the young students towards a motivated attempt of individualistic glorification. In the opinion of the court, if such material does create any adverse impact or is otherwise targeted towards unwanted propaganda without any contribution towards the educational standard sought to be achieved, then such material upon a thorough investigation and deliberation by the Expert Committee could be deleted with the aid of Section 18 of the Act 2010. It appears that the State Government while introducing the Amendment Act 2011 did not appropriately focus attention on the provision of Section 18 quoted hereinabove that are inclusive of all powers that may be required to remove such difficulties. Had the said provision been carefully noted, there would have been no occasion to suspend the implementation of the Act 2010. What could have been done with the help of a needle was unnecessarily attempted by wielding a sword from the blunt side. Not only this the said provision was not even pointed out by the State machinery before the High Court nor did its legal infantry choose to examine the same. Even before us the learned counsel were unable to successfully counter the availability of such powers with the State Government. In addition to that, needless to re-emphasize, the High Court while dealing with the validity of the provisions of the Act 2010, had already conceded liberty to the State Government to remove defects and had on the other hand struck down the offending provisions in Section 14 thereof empowering the State Government to compel the Education Board to be bound on questions of policy. Thus, the State Government was left with sufficient powers to deal with the nature of defects appropriately under the said judgment with a statutory power available for that purpose under Section 18 of the Act 2010.61. It may be relevant to point out here that Statement of Objects and Reasons given to the Amendment Act 2011 reveal a very sorry state of affairs and point out towards the intention of the legislature not to enforce the Act 2010 atlegislature in its wisdom had enforced the Act 2010 providing for common syllabus and text books for Standards I and VI from the academic year 2010-2011 and for Standards II to V and VII to X from the academic year 2011-2012, the validity of this law has been upheld by the High Court vide judgment and order dated 30.4.2010 and by this Court vide order dated 10.9.2010. Certain directions had been issued by the High Court which could be carried out easily by the State exercising its administrative powers without resorting to any legislative function. By the Amendment Act, even the application of Act 2010, so far as Standards I and VI are concerned, has also been withdrawn without realising that students who have studied in academic year 2010-11 would have difficulty in the next higher class if they are given a different syllabus and different kind of text books. The Amendment Act 2011 provided that the students in Standards I and VI would also revert back to the old system which had already elapsed.65. The Amendment Act 2011, in fact, nullified the earlier judgment of the High Court dated 30.4.2010, duly approved by the order of this Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as unfettered and uncanalised power has been bestowed upon the Government to notify the commencement of the uniform education system. State Government may submit only to the extent that the High Court itself had given option to the State to implement the Common Education System after ensuring compliance of directions issued by the High Court itself. However, no such liberty was available to the State so far as Standards I and VI are concerned.66. It is also evident from the record that after the new Government was sworn in on 16.5.2011, tenders were invited to publish books being taught under the old system on 21.5.2011 and subsequent thereto, it was decided in the Cabinet meeting on 22.5.2011 not to implement the uniform education system. Whole exercise of amending the Act 2010 was carried out most hurriedly. However, proceeding in haste itself cannot be a ground of challenge to the validity of a Statute though proceeding in haste amounts to arbitrariness and in such a fact-situation the administrative order becomes liable to be quashed. The facts mentioned hereinabove reveal that tenders had been invited on 21.5.2011 for publishing the text books, taught under the old system even prior to Cabinet meeting dated 22.5.2011. Thus, a decision had already been taken not to implement the Common Education System.67. If one crore twenty lacs students are now to revert back to the multiple syllabus with the syllabus and textbooks applicable prior to 2010 after the academic term of 2011-12 has begun, they would be utterly confused and would be put to enormous stress. Students can not be put to so much strain and stress unnecessarily. The entire exercise by the Government is therefore arbitrary, discriminatory and oppressive to students, teachers and parents.The State Government should have acted bearing in mind that "destiny of a nation rests with its youths". Personality of a child is developed at the time of basic education during his formative years of life. Their career should not be left in dolorific conditions with uncertainty to such a great extent. The younger generation has to compete in global market. Education is not a consumer service nor the educational institution can be equated with shops, therefore, "there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned."Thus, the State Government could by no means be justified in amending the provisions of Section 3 of the Act 2010, particularly in such uncertain terms. Undertaking given by the learned Advocate General to the High Court that the Act 2010 would be implemented in the academic year 2012-13, cannot be a good reason to hold the Act 2011 valid.68 Submissions advanced on behalf of the appellants that it is within the exclusive domain of the legislature to fix the date of commencement of an Act, and court has no competence to interfere in such a matter, is totally misconceived for the reason that the legislature in its wisdom had fixed the dates of commencement of the Act though in a phased manner. The Act commenced into force accordingly. The courts intervened in the matter in peculiar circumstances and passed certain orders in this regard also. The legislature could not wash off the effect of those judgments at all. The judgments cited to buttress the arguments, particularly in A.K. Roy v. Union of India & Anr., AIR 1982 SC 710 ; Aeltemesh Rein v. Union of India & Ors., AIR 1988 SC 1768 ; Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44 ; and Common Cause v. Union of India & Ors., AIR 2003 SC 4493 , wherein it has been held that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued, stand distinguished.69. As explained hereinabove, the Amendment Act 2011, to the extent it applies to enforcement of Act 2010, nullified the judgment of the High Court dated 30.4.2010 duly approved by this Court vide order dated 10.9.2010. Thus, we concur with the conclusion reached by the High Court in this regard.70. To summarise our conclusions:(i) The Act 2010 was enacted to enforce the uniform education system in the State of Tamil Nadu in order to impart quality education to all children, without any discrimination on the ground of their economic, social or cultural background.(ii) The Act itself provided for its commencement giving the academic years though, in phased programme i.e. for Standards I to VI from the academic year 2010-2011; and for other Standards from academic year 2011-2012, thus, enforcement was not dependent on any further notification.(iii) The validity of the Act was challenged by various persons/ institutions and societies, parents of the students, but mainly by private schools organisations, opposing the common education system in the entire State. The writ petitions were dismissed upholding the validity of the Act. However, few provisions, particularly, the provisions of Sections 11, 12 and 14 were struck down by the High Court vide judgment and order dated 30.4.2010. The said judgment of the High Court was duly approved by a speaking order of this Court dated 10.9.2010. Certain directions had been given in the said judgment by the High Court which could have been complied with by issuing executive directions. Moreover, directions issued by the High Court could be complied with even by changing the Schedule as provided in the judgment dated 30.4.2010 itself.(iv) Section 18 of the Act 2010 itself enabled the Government to issue any executive direction to remove any difficulty to enforce the statutory provisions of the Act 2010. The Act 2010 itself provided for an adequate residuary power with the government to remove any difficulty in enforcement of the Act 2010, by issuing an administrative order.(v) Justification pleaded by the State that Amendment Act 2011 was brought to avoid contempt proceedings as the directions issued by the High Court could not be complied with, is totally a misconceived idea and not worth acceptance.(vi) The new government took over on 16.5.2011 and immediately thereafter, the Government received representations from various private schools/organizations on 17th/18th May, 2011 to scrap the uniform education system. As most of these representations were made by the societies/organisations who had earlier challenged the validity of the Act 2010 and met their waterloo in the hierarchy of the courts, such representations were, in fact, not even maintainable and, thus could not have been entertained by the Government.(vii) Before the first Cabinet meeting of the new Government on 22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books under the old education system. It shows that there had been a pre-determined political decision to scrap the Act 2010. The Cabinet on 22.5.2011 had taken a decision to do away with the Act 2010 and brought the Ordinance for that purpose.(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and textbooks till then.(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of the decision of the Cabinet in this regard.(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.(xi) The Secretary of School Education Department had filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department, who had been entrusted the responsibility to plead on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth, IXth and Xth vide G.O. dated 9.5.2011.(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended to find out a better system of school education. Thus, the object has been to repeal the Act 2010.(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the court, fundamentally altering the conditions on which such a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.(xvii) The School Education Department of Tamil Nadu on 24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was not permissible for the State to revert back to the old system at this advanced stage.(xviii) Most of the other directions given by the High Court on 30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting the Act 2010 under suspended animation for an indefinite period on uncertain terms.(xxi) Undoubtedly, there had been a few instances of portraying the personality by the leader of political party earlier in power, i.e. personal glorification, self publicity and promotion of his own cult and philosophy, which could build his political image and influence the young students, particularly, in the books of primary classes. Such objectionable material, if any, could be deleted, rather than putting the operation of the Act 2010 in abeyance for indefinite period.(xxii) As early as in April 2011, textbooks for Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that for Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010.Steps should have been taken to remove the discrepancy.(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Courts judgments and such an act simply tantamounts to subversive of law.