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. THE TAMIL NADU STATE GOVERNMENT HAS NO RIGHT TO PASS AN AMENDMENT ACT SUPERSEDING THE COURT ORDER .

                                                                               REPORTABLE


                  IN THE SUPREME COURT OF INDIA


                    CIVIL APPELLATE JURISDICTION


                    CIVIL APPEAL NOS.6015-6027/2011





 State of Tamil Nadu & Ors.                                                                   .....


Appellants


                                                      Versus


 K. Shyam Sunder & Ors.                                                               .....Respondents





                                    J U D G M E N T





Dr. B.S. CHAUHAN, J.




1.         These  appeals  have been  preferred  against the judgment and


order   dated   18.7.2011   of   the   High   Court   of   Judicature   at   Madras   in


Writ Petition Nos.12882, 12890, 13019, 13037, 13038, 13227, 13293,


13296,   13345,   13381,   13390,   13547   of   2011   and   W.P.(M.D.)


No.6143/2011 whereby the High Court has struck down Section 3 of


The Tamil Nadu Uniform System of School Education (Amendment)


Act,   2011   (hereinafter   called   the   Amendment   Act   2011)   and   issued


directions to the State Authorities to implement the provisions of The


Tamil   Nadu   Uniform   System   of   School   Education   Act,   2010


(hereinafter   called   the   Act   2010),   i.e.   to   implement   the   common


syllabus, distribute the textbooks printed under the uniform system of


education   and   commence   the   classes   on   or   before   22.7.2011.   The


Contempt   Petitions   have   been   filed   for   non-implementing   the


directions given by this Court vide order dated 14.6.2011.


2.     F
          ACTS:


A.      In   the   State   of   Tamil   Nadu,   there   had   been   different   Boards


        imparting   basic   education   to   students   upto   10th  standard,


        namely, State  Board,   Matriculation   Board,  Oriental   Board  and


        Anglo-Indian   Board.     Each   Board   had   its   own   syllabus   and


        prescribed   different   types   of   textbooks.   In   order   to   remove


        disparity   in   standard   of   education   under   different   Boards,   the


        State   Government   appointed   a   Committee   for   suggesting   a


        uniform   system   of   school   education.     The   said   Committee


        submitted its report on 4.7.2007.  Then another Committee was


        appointed to implement suggestions/recommendations made by


        the said Committee.





                                                                                   2


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.





                                                                                    3


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).





                                                                                 4


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




                                                                                        5


      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





                                                                                   6


      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





                                                                                   7


      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





                                                                                    8


       Standards II to V and VII to X   keeping in view the provisions


       of  the amended Act.


J.     In   pursuance   of   the   said   order,   an   Expert   Committee   was


       constituted and after having several meetings, a joint report was


       submitted to the High Court.  The High Court after considering


       the said report, vide judgment and order dated 18.7.2011, found


       fault with the report of the Expert Committee and struck down


       Section   3   of   Amendment   Act   2011   with   a   direction   that   the


       State   shall   distribute   the   textbooks   printed   under   the   uniform


       system of education to enable the teachers to commence classes,


       and complete distribution of textbooks on or before 22.7.2011.  


                    Hence, these appeals.





RIVAL SUBMISSSIONS:


3.        Shri  P.P. Rao, Shri  C.A. Sundaram, Dr. Rajeev Dhavan, Dr.


Abhishek   M.   Singhvi,   Sr.   Advocates,   Shri   A.   Navaneetha   Krishnan,


learned   Advocate   General   and   Shri   Guru   Krishna   Kumar,   learned


Additional   Advocate  General  for  the   State   of Tamil   Nadu,  appearing


for the   appellants, have submitted that the High Court vide its earlier





                                                                                 9


judgment   dated   30.4.2010   had   issued   directions   to   the   State


Government to amend the Act 2010 as certain provisions thereof had to


be   brought   in   conformity   with   the   Act   2009   and   the   State   had   to


constitute   the   Board   and   designate   the   Academic   Authority   and   the


State Advisory Council. In view thereof, it was necessary to bring the


Amendment   Act   2011.   Thus,   basically   it   was   in   consonance   and   in


conformity   with   the   judgment   dated   30.4.2010   which   has   duly   been


approved by this Court. The   High Court in its earlier judgment itself


gave   liberty   to   the   State   to   implement   the   common   syllabus   and


distribute text books under the Act 2010 from academic year 2011-12


or with any future date after the norms were made known by the State


Authorities so far as the students of Standards II to V and VII to X are


concerned.  Therefore, in view of the same, the High Court committed


an   error   holding   that   the   Amendment   Act   2011   tantamounts   to


repealing the Act 2010. The High Court itself has accepted the settled


legal proposition that the question of malafide or colourable exercise of


power cannot be alleged against the legislature, but still it recorded the


finding   that   the   Amendment   Act   2011   was   a   product   of   arbitrary


exercise of power. The authorities  had to ensure compliance with the


National Curriculum Framework 2005   (hereinafter called NCF 2005)





                                                                                   1


prepared   by   the   National   Council   of   Educational   Research   and


Training   (hereinafter   called   NCERT),   which   had   laid   down   a   large


number of guidelines for preparing the syllabus and curriculum for the


children.     The   Government   of   India   issued   Notification   dated


31.3.2010,   published   in   the   Official   Gazette   of   India     on   5.4.2010,


recognizing   the NCERT as the Academic Authority to lay down the


curriculum and evaluation  procedure for elementary  education and to


develop a framework on national curriculum. In consequence thereof, a


Government Order dated 31.5.2010 was also issued by the Ministry of


Human   Resources   Development   to   the   effect   that   in   view   of   the


statutory provisions of the Act 2009, which provided that the Central


Government   shall   develop   a   framework   on   national   curriculum   with


the help of Academic Authority specified under Section 29 thereof,  the


NCF 2005 would be the NCF till such time as the Central Government


requires   to   develop   a   new   framework.   After   the   order   of   this   Court


dated   14.6.2011,   the   Expert   Committee     appointed   by   the   State   had


gone through the syllabus and the text books already printed and after


having various meetings, came to the conclusion that the same required


thorough   revision   and   therefore,   submitted   a   report   that   it   was   not


possible to implement the Act 2010 in the academic year 2011-12.





                                                                                    1


                      The   Advocate   General   of   Tamil   Nadu   had   given


assurance to the High Court that under all circumstances the Act 2010


will be implemented in the next academic year, i.e. 2012-13. However,


the Court did not consider the same at all.             It   falls   within   the


exclusive domain of the legislature/ Government as to from which date


it would enforce a Statute. The court cannot even issue a mandamus to


the   legislature   to   bring   a   particular   Act   into   force.   Therefore,   the


question of striking down the Amendment Act 2011 on the ground that


implementation   of   the   Act   2010   to   be   deferred   indefinitely   is   not   in


accordance with the settled legal propositions. The State had to appoint


various   authorities   and   notify   the   same   as   required   under   various


statutes.   Once   the   provision   stands   amended   and   the   amending


provisions   are   struck   down   by   the   Court,   the   obliterated   statutory


provisions would not revive automatically unless the provisions of the


amending   statutes   is   held   to   be   invalid   for   want   of   legislative


competence. The appeals deserve to be allowed and the judgment and


order of the High Court impugned are liable to be set aside.


4.         Per   contra,   Shri   T.R.   Andhyarujina,   Shri   Basava   Prabhu   S.


Patil,   Shri   R.   Viduthalai,   Shri   Dhruv   Mehta,   Shri   M.N.   Krishnamani


and   Shri   Ravi   Verma   Kumar,   Sr.   Advocates     and   Shri   Prashant





                                                                                      1


Bhushan   and   Shri   N.G.R.   Prasad,   Advocates   appearing   for   the


respondents  have submitted that the Amendment Act is a political fall


out due to change of  Government. The new Government was sworn in


on 16.5.2011. The Cabinet on 22.5.2011 decided not to implement the


uniform   education   system   which   was   purely   a   political   decision   as


there was no material before the Cabinet on the basis of which it could


be decided that implementation of the Act 2010 was not possible. The


academic   session   which   had   to   start   on   1.6.2011   was   postponed


extending   the   summer   vacation   upto   15.6.2011   vide   order   dated


25.5.2011. The decision of the Cabinet was challenged before the High


Court by filing writ petitions on 1.6.2011 and during the pendency of


the   said   cases,   the   Amendment   Act   2011   was   passed   hurriedly,   that


was   a   totally   arbitrary   and   unwarranted   exercise   underlined   by   sheer


political   motives.   The   Amendment   Act   2011   was   promulgated   on


7.6.2011 itself with retrospective effect i.e. with effect from 22.5.2011,


the  date  of  decision  of  the  Cabinet,   not  to  implement  the  Act     2010.


The Amendment Act 2011 has taken away the effect of the judgments


of the High Court dated 30.4.2010 and of this Court dated 10.9.2010,


wherein  it had been held that for Standards I & VI,  the Act 2010 will


be implemented from academic year 2010-11 and for others from the





                                                                                  1


academic year 2011-12. Under the said judgment, the implementation


of Act 2010 for Standards I & VI as directed by Court had also been


taken away by the Amendment Act 2011. The mandate of the statute


that   for   Standards   II   to   V   and   VII   to   X,   the   Act   2010   will   be


implemented   from   academic   year   2011-12,   stood   completely   wiped


out.     Not   fixing   any   future   date   for   implementation   of   the   Act   2010


while   bringing   the   Amendment   Act   2011,   the   legislature   has


substantially   repealed   the   Act   2010.   The   Statement   of   Objects   and


Reasons   are a preface  to the intention of the legislature  and provide


guidelines for interpreting the statutory provisions.  The same provides


that   the   authorities   have   taken   a   decision   to   scrap   the   uniform


education system adopted under the Act 2010 and the State will search


for a better alternative.   The legislature is not competent to overrule a


judicial   decision   of   a   competent   court   or   take   away   its   effect


completely as it amounts to trenching upon the judicial powers of the


Court. The Amendment Act 2011 is liable to be struck down solely on


this  ground.        


      The   law   does   not   permit   change   of   policies   merely   because   of


another political party with a different political philosophy coming in


power, as it is the decision of the Government, the State, an Authority





                                                                                      1


under Article 12 of the Constitution, and not of a particular person or a


party, which is responsible for an enactment and implementation of all


laws.   The   High   Court   rightly   came   to   the   conclusion   that   the   Expert


Committee   was   not   unanimous   on   every   issue   regarding   the


curriculum,   syllabus   and   quality   of   text   books.   Even   if   some


corrections   were   required,   it   could   have   been   done   easily   by   issuing


administrative orders.  The authorities defined under the Act 2009 had


already been appointed, and even for giving effect to the judgment  of


the   High   Court   dated   30.4.2010,   it   was   not   necessary   to   bring   about


any fresh legislation.  In case the amending statute is held to be invalid


being   violative   of   any   of   the   fundamental   rights   or   arbitrary,   the


repealed provisions would automatically revive. Conferring unfettered


powers   on   the   executive,   without   laying   down   any   criterion   or


guidelines   to   enforce   the   Act   2010,   tantamounts   to   abdication   of   its


legislative powers. Non-availability of choice of multiple text books for


a very few schools could not be a ground for scrapping the Act 2010.


The appeals lack merit and are liable to be dismissed.


5.         We   have   considered   the   rival   submissions   made   by   learned


counsel for the parties and perused the record.





                                                                                     1


6.         In post-Constitutional era, an attempt has been made to create


an  egalitarian   society   removing disparity  amongst  individuals,   and  in


order to achieve that purpose, education is one of the most important


and   effective   means.   After   independence,   there   has   been   an   earnest


effort   to   bring   education   out   of   commercialism/mercantilism.     In   the


year 1951, the Secondary  School Commission  was constituted  as  per


the   recommendation   of  Central   Advisory   Board   of  Education   and   an


idea   was   mooted   by   the   Government   to   prepare   textbooks   and   a


common   syllabus   in   education   for   all   students.     In   1964-1966,   the


report   on   National   Education   Policy   was   submitted   by   the   Kothari


Commission   providing   for   common   schools   suggesting   that   public


funded schools be opened for all children irrespective of caste, creed,


community,  religion,  economic conditions or social  status.  Quality  of


education   imparted   to   a   child   should   not   depend   on   wealth   or   class.


Tuition fee should not be charged from any child, as it would meet the


expectations of parents with average income and they would be able to


send   their   children   to   such   schools.   The   recommendations   by   the


Kothari   Commission   were   accepted   and   reiterated   by   the   Yashpal


Committee   in   the   year   1991.   It   was   in   this   backdrop   that   in   Tamil





                                                                                     1


Nadu, there has been a demand from the public at large to bring about a


common education system  for all children.


                      In   the   year   2006,   in   view   of   the   struggle   and


campaign   and   constant   public   pressure,   the   Committee   under   the


Chairmanship   of   Dr.   S.   Muthukumaran,   former   Vice-Chancellor   of


Bharathidasan   University   was   appointed   which   recommended   to


introduce   a     common   education   system   after   abolishing   the   four


different Boards then in existence in the State. Subsequent thereto, the


Committee constituted of Shri M.P. Vijayakumar, IAS was appointed


to look into the recommendations of  Dr. S. Muthukumaran Committee


which   also   submitted   its   recommendations   to   the   Government   to


implement a  common education system upto Xth standard.


7.        The right to education is a Fundamental Right under Article 21-


A inserted by  the 86th amendment of the Constitution. Even before the


said   amendment,   this   Court   has   treated   the   right   to   education   as   a


fundamental right. (Vide: Miss Mohini Jain   v.  State of Karnataka


& Ors.,  AIR 1992 SC 1858;  Unni Krishnan, J.P. & Ors. etc. etc. v.


State of A.P & Ors. etc. etc. ,  AIR 1993 SC 2178; and  T.M.A. Pai


Foundation   &   Ors.   v.   State   of   Karnataka   &   Ors.,  (2002)   8   SCC


481).





                                                                                    1


        There has been a campaign that right to education under Article


21-A of our Constitution be read in conformity with Articles 14 and 15


of  the Constitution  and  there  must  be  no discrimination  in quality   of


education.   Thus,   a   common   syllabus   and   a   common   curriculum   is


required. The right of a child should not be restricted only to free and


compulsory   education,   but   should   be   extended   to   have   quality


education without any discrimination on the ground of their economic,


social and cultural background.


        Arguments   of   the   propagators   of   this   movement   draw   support


from   the   judgment   of   U.S.   Supreme   Court   in   the   case   of  Brown   v.


Board   of   Education,  347   U.S.   483   (1954)   over-ruling   its   earlier


judgment   in  Plessy   v.   Ferguson,  163   U.S.   537   (1896),   where   it   has


been   held   that   "separate   education   facilities   are   inherently   unequal"


and thus, violate the doctrine of equality.


        The   propagators   of   this   campaign   canvassed   that   uniform


education system would achieve the code of common culture, removal


of disparity, depletion of   discriminatory values in human relations. It


would   enhance   the   virtues   and   improve   the   quality   of   human   life,


elevate   the   thoughts   which   advance   our   constitutional   philosophy   of


equal   society.   In   future,   it   may   prove   to   be   a   basic   preparation   for





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 uniform civil code as it may help in  diminishing opportunities to those


 who foment fanatic and fissiparous tendencies.


                     In  Rohit   Singhal   &  Ors.   v.   Principal,   Jawahar   N.


Vidyalaya & Ors., AIR 2003 SC 2088, this Court expressed its great


concern regarding education for children observing as under:-


                       "Children are not only the future citizens

            but also the future of the earth. Elders in general,

            and   parents   and   teachers   in   particular,   owe   a

            responsibility for taking care of the well-being and

            welfare of the children. The world shall be a better

            or worse place to live according to how we treat

            the   children   today.  Education   is   an   investment

            made by the nation in its children for harvesting

            a future crop of responsible adults productive of

            a well functioning Society. However, children are

            vulnerable.   They   need   to   be   valued,   nurtured,

            caressed and protected." (Emphasis added)


 8.        In  State of Orissa v. Mamta Mohanty, (2011) 3 SCC 436,


 this Court emphasised  on the importance of education observing that


 education connotes the whole course of scholastic instruction which a


 person   has   received.   Education   connotes   the   process   of   training   and


 developing   the   knowledge,   skill,   mind   and   character   of   students   by


 formal schooling.   The Court further relied upon the earlier judgment


 in Osmania University Teachers' Assn. v. State of A.P. & Anr., AIR


 1987 SC 2034, wherein it has been held as under:





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                              "....Democracy   depends   for   its   very   life

      on a high standard of general, vocational and professional

      education.   Dissemination   of   learning   with   search   for   new

      knowledge with discipline all round must be maintained at

      all costs."


             The case   at hand is to be proceeded with keeping this ethical


 backdrop in mind.




9.            While   deciding   the   case   earlier,   the   Division   Bench   of   the


Madras High Court on 30.4.2010 held that:


      (i)          The provisions of Sections 11, 12 and 14 of the Act


      were   ultra   vires   and   unconstitutional,   and   thus   struck   them


      down.     However,   considering   the   problems   of   the   State


      authorities, the Division Bench concluded that the State was


      competent to bring in an education system common to all in


      the interest of social justice and quality education.  The order


      further read as under:


                         "Implementation  of the  syllabus  and  text

               books is postponed till the academic year 2011-12

               or until the State makes known the norms and the

               syllabus and prepares the text books in advance."


                         (Emphasis added)


       (ii)  In the meantime the State would bring the provision of


      the Act 2010 in line with the Central Act, e.g. the State shall


      specify   by   Notification   the   Academic   Authority   and   the


      State Advisory Council.  The Board shall also indicate what


      the approved books are.  The State shall by amending the





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       section or by introducing a schedule to the Act,  indicate


       that the syllabus  is restricted to curricular subjects   and all


       schools are bound to follow the common  syllabus  only for


       the curricular subjects and not for the co-curricular subjects.


       The   schools   may   choose   from   multiple   text   books  vis.


       Government produced text books which are prescribed text


       books   and   the   Government   approved   text   books   in   all


       subjects both curricular and co-curricular.  


       (iii)        The   schools   shall   follow   the   norms   as   far   as   they


       are practicable. There can be no Board examination upto the


       level of elementary education but the assessment norms may


       be specified. Norms shall be fixed by the Board. The State


       may   make   it   clear   whether   this   Board   will   also   be   the


       Academic   Authority   under   the   Central   Act.   However,


       considering the request of the learned Additional Advocate


       General   just   after   pronouncing   the   judgment   the   Court


       accepted that Section 3 as modified by the Court would be


       implemented   for   Standards   I   and   VI   from   academic   year


       2010-11,   provided   the   Board   fixed   the   norms   before


       15.5.2010.


              The said judgment has duly been approved by this Court


       by a speaking order dated 10.9.2010.



10.             Decision   of   the   Cabinet   dated   22.5.2011,   to   postpone   the


enforcement   of   the   Act   2010   was   challenged   through   various   writ


petitions. Meanwhile, the government issued an Ordinance which was





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converted to Act 2011 passed on 7.6.2011 with retrospective effect i.e.


22.5.2011, the date on which the decision was taken by the Cabinet of


the   State   in   this   regard.   Accordingly,   writ   petitions   were   amended


challenging   the   validity   of   the   Amendment   Act   2011.   Interim   orders


passed by the High Court therein were challenged before this Court.


11.              This   Court   in  its   judgment   and   order   dated   14.6.2011  inter-


alia, directed as under:


       (i)                 The  academic  Scheme in  force   for  the  Academic  year

                2010-11 for Standards I and VI shall continue to be in force in

                all respects for the Academic year 2011-12 as well;


        (ii)       Each   text   book   and   to   what   extent   the   amended   syllabus

                   will   be   applicable   to   every   course   shall   be   finally

                   determined by the High Court keeping in view the amended

                   provisions of the Act and its impact; and


       (iii)                         We hereby direct the State to appoint a Committee,

                  which   it   had   already   undertaken   to   appoint   primarily   to

                  examine   ways   and   means   of   implementing   the   uniform

                  education   system   to   the   classes   (II   to   V   and   VII     to   X)   in

                  question; common syllabus and the text books which are to

                  be provided for the purpose.

                       


12.              The   aforesaid   directions   make   it   clear   that   the   issues   with


regard   to   syllabus   and   text   books   were   to   be   determined   after


considering the report of the Expert Committee appointed by the State


to   examine   ways   and   means   of   implementing   the   uniform


education   system  in   Standards   (II   to   V   and   VII     to   X)   in   question,




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common syllabus and the text books which are to be provided for the


purpose. Thus, it was the Expert Committee which had been assigned


the   role   to   find   out   ways   and   means   to   implement   the   common


education policy etc.


13.           The  High Court  in the  impugned judgment  while examining


the   validity   of   the   amended   provisions   took   note   of   settled   legal


propositions as under:


              "As there is no challenge  to the Amending Act

              on   the   ground   of   legislative   incompetence,   we

              are   not   required   to   examine   the   effect   of   the

              Amending  Act, on such grounds or to examine

              whether   the   Amending   Act   is   a   colourable

              legislation on such aspects. Therefore, we have to

              examine the matters solely based on the directions

              issued by the Hon'ble Supreme Court in its order

              dated 14.6.2011. The Amending Act which has the

              effect of repeal of the Parent Act under the guise of

              postponement of its implementation,  when in fact

              Parent Act has already been implemented, though

              partially,   the   Amending   Act   has   to   be   held   to   be

              arbitrary piece of legislation which does not satisfy

              the  touchstone  of Article 14 of the Constitution of

              India."   (Emphasis added)


              14.       The   High   Court   after   examining   the   validity   of   the


Amended Act held:


       (I)               The   Committee   so   constituted   may   not   be


                         justified   in   submitting   the   report   stating   that


                         the   entire   uniform   system   of   education   be





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         scrapped  and the text books already provided


         for be discarded.


(II)     The Expert Committee  has mis-directed  itself


         as   it   ought   to   have   proceeded   primarily   to


         examine the ways and means of implementing


         the uniform system of education, curiously the


         Committee,   in   its   final   report   concluded   that


         no   text   book   can     be   used   for   the   academic


         year 2011-12.

(III)    The   Committee   members   were   not   of   the


         unanimous   opinion   that   the   uniform   syllabus


         and common  text books have to be discarded


         from   the   current   year.   Each   member   has


         pointed out  certain  defects  and  recommended


         for certain changes and additions.


(IV)       In the order dated 10.6.2011, the High Court


         directed   the   Government   to   notify   the


         approved text books after conducting the study


         with   a   view   to   comply   with   the   direction


         issued earlier on 30.4.2010. This direction was


         issued to enable the schools to choose from the


         multiple   text   books.     However,   these   orders


         and   directions   have   been   discarded   by   the


         State.


(V)      The State has  exceeded its power in bringing


         the   Amending   Act   to   postpone   an   enactment


         which has already come into force. As there is




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                a   sudden   change   in   the   policy   of   the


                Government from its predecessor immediately


                after coming into power that the Court had to


                see   the   impact   of   the   amendment,


                notwithstanding   the   competence   of   the


                legislature to pass an Amendment Act.


(VI)            If the law was passed only ostensibly but was


                in truth and substance, one for accomplishing


                an   unauthorized   object,   the   court   would   be


                entitled to lift the veil and judicially review the


                case.


(VII)       The   State   has   sought   to   achieve   indirectly   what


could   not   be   achieved   directly   as   it   was   prevented   from


doing   so   in   view   of   the   judgment   of   the   Division   Bench


which upheld the validity of the Parent Act 2010.


(VIII) The   Amendment   Act   2011   is   an   arbitrary   piece   of


         legislation   and   violative   of   Article   14   of   the


         Constitution   and   the   Amendment   Act   2011   was


         merely   a   pretence   to   do   away   with   the   uniform


         system   of   education   under   the   guise   of   putting   on


         hold the implementation of the Parent Act, which the


         State was not  empowered to do so.


 (IX)     If   the   impugned   Amending   Act   has   to   be   given


          effect to, it would result in unsettling various issues


          and   the   larger   interest   of   children   would   be


          jeopardized.





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15.        There   are   claims   and   counter   claims   on   each   factual   aspect


and   the   High   Court   has   dealt   with   each   issue   elaborately,   in   our


opinion,   to   an     unwarranted   extent.     However,   before   we   proceed


further, it may be necessary to examine the legal issues:-



I.       CHANGE   OF   POLICY   WITH   THE   CHANGE   OF

         GOVERNMENT:



16.       The Government has to rise above the nexus of vested interests


and   nepotism   and   eschew   window-dressing.   "The   principles   of


governance have to be tested on the touchstone of justice, equity, fair


play and if a decision is not based on justice, equity and fair play and


has taken into consideration other matters, though on the face of it, the


decision may look legitimate but as a matter of fact, the reasons are not


based on values but to achieve popular accolade, that decision cannot be


allowed   to   operate".   (Vide:  Onkar   Lal   Bajaj   etc.   etc.   v.   Union   of


India & Anr. etc. etc., AIR 2003 SC 2562).


17.       In  State of Karnataka & Anr. v. All India Manufacturers


Organisation & Ors.,  AIR 2006 SC 1846, this Court examined under


what circumstances the government should revoke a decision taken by


an   earlier   Government.   The   Court   held   that   an   instrumentality   of   the


State cannot have a case to plead contrary from that of the State and the


policy   in   respect   of   a   particular   project   adopted   by   the   State



                                                                                    2


Government should not be changed with the change of the government.


The Court further held as under:-


                  "It is trite law that when one of the contracting

            parties is State within the meaning of Article 12 of

            the   Constitution,   it   does   not   cease   to   enjoy   the

            character of "State" and, therefore, it is subjected to

            all   the   obligations   that   "State"   has   under   the

            Constitution. When the State's acts of omission or

            commission             are         tainted         with         extreme

            arbitrariness  and with  mala  fides,   it  is  certainly

            subject   to   interference   by   the   Constitutional

            Courts."  (Emphasis added)


18.        While deciding the said case, reliance had been placed by the


Court on its earlier judgments in  State of U.P. & Anr. v. Johri Mal,


AIR 2004 SC 3800; and State of Haryana v. State of Punjab & Anr.,


AIR   2002   SC   685.   In   the   former,   this   Court   held   that   the   panel   of


District Government Counsel should not be changed only on the ground


that the panel had been prepared by the earlier Government. In the latter


case,   while   dealing   with   the   river   water-sharing   dispute   between   two


States, the Court observed thus:


            " .........in the matter of governance of a State or in

            the   matter   of   execution   of   a   decision   taken   by   a

            previous   Government,   on   the   basis   of   a   consensus

            arrived   at,   which   does   not   involve   any   political

            philosophy,   the   succeeding   Government   must   be

            held   duty-bound   to   continue   and   carry   on   the

            unfinished   job   rather   than   putting   a   stop   to   the

            same."





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19.       In  M.I.   Builders   Pvt.   Ltd.   v.   V.   Radhey   Shyam   Sahu   &


Ors., AIR 1999 SC 2468, while dealing with a similar issue, this Court


held   that   Mahapalika   being   a   continuing   body   can   be   estopped   from


changing its stand in a given case, but where, after holding enquiry, it


came to the conclusion that action was not in conformity with law, there


cannot be estoppel against the Mahapalika.


20.       Thus, it is clear from the above, that unless it is found that act


done by the authority earlier in existence is either contrary to statutory


provisions,   is   unreasonable,   or   is   against   public   interest,   the   State


should not change its stand merely because the other political party has


come into power. Political agenda of an individual or a political party


should not be subversive of rule of law.




II.        COLOURABLE LEGISLATIONS:


21.        In  The  State  of Punjab  & Anr. v. Gurdial  Singh  & Ors.,


AIR 1980 SC 319, this Court held that when power is exercised in  bad


faith   to   attain   ends   beyond   the   sanctioned   purposes   of   power   by


simulation   or   pretension   of   gaining   a     legitimate   goal,   it   is   called


colourable exercise of power.  The action becomes bad where the true


object is to reach an end different from the one for which the power is


entrusted, guided by an extraneous consideration, whether good or bad




                                                                                     2


but   irrelevant   to   the   entrustment.     When   the   custodian   of   power   is


influenced in exercise of its power by considerations outside those for


promotion of which the power is vested, the action becomes bad for the


reason that power has not been exercised bonafide for the end design.


22.        It has consistently been held by this Court that the doctrine of


malafide does not involve any question of bonafide or malafide on the


part of legislature as in such a case, the Court is concerned to a limited


issue  of  competence   of  the  particular   legislature   to  enact   a   particular


law.  If the legislature is competent to pass a particular enactment, the


motives which impelled it to an act are really irrelevant.  On the other


hand, if the legislature lacks competence, the question of motive does


not arrive at all.  Therefore, whether a statute is constitutional or not is,


thus, always a question of power of the legislature to enact that Statute.



                  Motive   of   the   legislature   while   enacting   a   Statute   is


inconsequential:   "Malice   or   motive  is   beside   the   point,   and   it   is   not


permissible   to   suggest   parliamentary   incompetence   on   the   score   of


mala fides."



          The legislature, as a body, cannot be accused of having passed a


law   for   an   extraneous   purpose.   This   kind   of   "transferred   malice"   is


unknown in the field of legislation.





                                                                                       2


[See:  K.C.   Gajapati   Narayan   Deo   &   Ors.   v.   State   of   Orissa,  AIR


1953 SC 375;  R.S. Joshi, Sales Tax Officer, Gujarat & Ors. v. Ajit


Mills   Limited   &   Anr.,  AIR   1977   SC   2279;  K.   Nagaraj   &   Ors.   v.


State   of   Andhra   Pradesh   &   Anr.,  AIR   1985   SC   551;  Welfare


Assocn.     A.R.P.,   Maharashtra   &   Anr.   v.   Ranjit   P.   Gohil   &   Ors.,


AIR 2003 SC 1266; and State of Kerala & Anr. v. Peoples Union for


Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46].





III.      LAWS  CONTRAVENING ARTICLE 13(2):


23.       The legislative competence can be adjudged with reference to


Articles 245 and 246 of the Constitution read with the three lists given


in the Seventh Schedule as well as with reference to Article 13(2) of


the Constitution which prohibits the State from making any law which


takes   away   or   abridges   the   rights   conferred   by   Part-III   of   the


Constitution and provides  that any  law made  in contravention  of this


Clause shall, to the extent of contravention be void.





24.       In  Deep Chand & Ors. v. State of U.P. & Ors.,   AIR 1959


SC 648, this Court held:


           "There   is   a   clear   distinction   between   the   two

           clauses of Article 13. Under cl. (1) of Article 13, a

           pre-Constitution  law  subsists  except  to  the extent

           of its inconsistency with the provisions of Part III;

           whereas,   no   post-Constitution   law   can   be   made





                                                                               3


         contravening   the   provisions   of   Part   III,   and

         therefore the law, to that extent, though made, is a

         nullity from its inception of this clear distinction is

         borne   in   mind   much   of   the   cloud   raised   is

         dispelled.


               When   cl.   (2)   of   Art.   13   says   in   clear   and

         unambiguous terms that no State shall make any law

         which takes away or abridges the rights conferred by

         Part  III, it  will not  avail the  State to  contend  either

         that the clause does not embody a curtailment of the

         power to legislate or that it imposes only a check but

         not a prohibition. A constitutional prohibition against

         a State making certain laws cannot be whittled down

         by analogy or by drawing inspiration from decisions

         on the provisions of other Constitutions; nor can we

         appreciate the argument that the words "any law" in

         the second line of Art. 13(2) posits the survival of the

         law  made in  the teeth  of such   prohibition. It  is  said

         that   a   law   can   come   into   existence   only   when   it   is

         made and therefore any law made in contravention of

         that   clause   presupposes   that   the   law   made   is   not   a

         nullity. This argument may be subtle but is not sound.

         The words 'any law" in that clause can only mean an

         Act   passed   or   made   factually,   notwithstanding   the

         prohibition. The result of such contravention is stated

         in   that   clause.  A   plain   reading   of   the   clause

         indicates,   without   any   reasonable   doubt,   that   the

         prohibition goes to the root of the matter and limits

         the   State's   power   to   make   law   ;   the   law   made   in

         spite of the prohibition is  a still born law."

                                                                    (Emphasis

         added)




(See also:  Mohd. Shaukat Hussain Khan v. State of A.P.  AIR 1974

SC 1480).

   





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25.        In  Behram   Khurshid   Pesikaka   v.   State   of   Bombay  AIR


1955 SC 123; and  Mahendra Lal Jaini v. State of Uttar Pradesh &


Ors.  AIR 1963 SC 1019, this Court held that in case a statute violates


any of the fundamental rights enshrined in Part III of the Constitution of


India,   such   statute   remains   still-born;   void;   ineffectual   and   nugatory,


without   having   legal   force   and   effect   in   view   of   the   provisions   of


Article   13(2)   of   the   Constitution.     The   effect   of   the   declaration   of   a


statute   as   unconstitutional   amounts   to   as   if   it   has   never   been   in


existence.   Rights cannot be built up under it; contracts which depend


upon it for their consideration are void.  The unconstitutional act is not


the law.  It confers no right and imposes no duties.  More so, it does not


uphold any protection nor create any office.   In legal contemplation it


remains  not  operative   as   it  has  never  been  passed.   In  case  the  statute


had   been   declared   unconstitutional,   the   effect   being   just   to   ignore   or


disregard.




IV.         DOCTRINE OF LIFTING THE VEIL:


26.         However, in order to test the constitutional validity of the Act,


where it is alleged that the statute violates the fundamental rights, it is


necessary to ascertain  its  true  nature and  character  and  the impact  of


the Act.  Thus, courts may examine with some strictness the substance




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of the legislation and for that purpose, the court has to look behind the


form and appearance thereof to discover the true character and nature


of the legislation.  Its purport and intent have to be determined. In order


to do so it is permissible  in law to take into consideration all factors


such as history of the legislation, the purpose thereof, the surrounding


circumstances   and   conditions,   the   mischief   which   it   intended   to


suppress, the remedy for the disease which the legislature resolved to


cure and the true reason for the remedy. (Vide: Dwarkadas Shrinivas


v. The Sholapur Spinning & Weaving Co. Ltd. & Ors.,  AIR 1954


SC   119;  Mahant   Moti   Das   v.   S.P.   Sahi,   The   Special   Officer   in


charge   of   Hindu   Religious   Trust   &   Ors.,  AIR   1959   SC   942;   and


Hamdard Dawakhana & Anr. v. Union of India & Ors.,  AIR 1960


SC 554).


V.       INTERFERENCE   BY   COURT   WITH   EXPERT   BODY'S

         OPINION:


27.       Undoubtedly,  the Court lacks  expertise  especially  in disputes


relating   to   policies   of   pure   academic   educational   matters.   Therefore,


generally   it   should   abide   by   the   opinion   of   the   Expert   Body.     The


Constitution Bench of this Court in The University of Mysore & Anr.


v.  C.D. Govinda Rao & Anr., AIR 1965 SC 491  held that "normally


the courts should be slow to interfere with the opinions expressed by the




                                                                                    3


experts". It would normally be wise and safe for the courts to leave such


decisions to experts who are more familiar with the problems they face


than   the   courts   generally   can   be.   This   view   has   consistently   been


reiterated by this Court in Km. Neelima Misra v. Dr. Harinder Kaur


Paintal   &   Ors.,  AIR   1990   SC   1402;  The  Secretary   &   Curator,


Victoria Memorial  Hall v. Howrah Ganatantrik Nagrik Samity  &


Ors., AIR 2010 SC 1285; Dr. Basavaiah v. Dr. H.L. Ramesh & Ors.,


(2010) 8 SCC 372; and  State of H.P. & Ors. v. H.P. Nizi Vyavsayik


Prishikshan Kendra Sangh, (2011) 6 SCC 597.





VI.      WHAT   CANNOT   BE   DONE   DIRECTLY-CANNOT   BE

         DONE INDIRECTLY:



28.        It   is   a   settled   proposition   of   law   that   what   cannot   be   done


directly,   is   not   permissible   to   be   done   obliquely,   meaning   thereby,


whatever is prohibited by law to be done, cannot legally be effected by


an   indirect   and   circuitous   contrivance   on   the   principle   of   "quando


aliquid   prohibetur,   prohibetur   at  omne   per   quod   devenitur   ad   illud."


An   authority   cannot   be   permitted   to   evade   a   law   by   "shift   or


contrivance". (See:   Jagir Singh v. Ranbir Singh, AIR 1979 SC 381;


M.C. Mehta v. Kamal  Nath & Ors., AIR 2000 SC 1997; and  Sant





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Lal Gupta & Ors. v. Modern Co-operative Group Housing Society


Ltd. & Ors., JT 2010 (11) SC 273).



VII.       CONDITIONAL LEGISLATION:



29.        As the legislature cannot carry out each and every function by


itself,   it   may   be   necessary   to   delegate   its   power   for   certain   limited


purposes in favour of the executive. Delegating such powers itself is a


legislative  function.  Such delegation of power, however, cannot be


wide, uncanalised or unguided. The legislature while delegating such


power   is   required   to   lay   down   the   criteria   or   standard   so   as   to


enable the delegatee to act within the framework of the statute. The


principle   on   which   the   power   of   the   legislature   is   to   be   exercised   is


required   to   be   disclosed.   It   is   also   trite   that   essential   legislative


functions cannot be delegated.    



                       Delegation   cannot   be   extended   to   "repealing   or


altering in essential particulars of laws which are already in force in the


area in question". (Vide:   re: Article 143, Constitution of India and


Delhi Laws Act (1912) etc., AIR 1951 SC 332).





30.        The   legislature   while   delegating   such   powers   has   to   specify


that   on   certain   data   or   facts   being   found   and   ascertained   by   an





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executive authority, the operation of the Act can be extended to certain


areas   or   may   be   brought   into   force   on   such   determination   which   is


described   as   conditional   legislation.   While   doing   so,   the   legislature


must retain in its own hands the essential legislative functions and what


can   be   delegated   is   the   task   of   subordinate   legislation   necessary   for


implementing   the   purpose   and   object     of     the     Act.     Where   the


legislative policy is enunciated with sufficient clearness or a standard is


laid   down,   the   courts   should   not   interfere.   What   guidance   should   be


given   and   to   what   extent   and   whether   guidance   has   been   given   in   a


particular case at all depends on consideration of the provisions of the


particular Act with which the Court has to deal including its preamble.


(See: In re: Delhi Laws Act (supra);  The  Municipal Corporation of


Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi & Anr.,


AIR 1968 SC 1232).





31.         In  Rajnarain   Singh   v.   Chairman,   Patna   Administration


Committee, Patna & Anr.,  AIR 1954 SC 569, a Constitution Bench


of this Court explained the ratio of the judgment in re: Delhi Laws Act


(supra) observing as under:



                 "In   our   opinion,   the   majority   view   was   that   an

       executive   authority   can   be   authorised   to   modify   either





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       existing   or   future   laws   but   not   any   essential   feature.

       Exactly,   what   constitutes   an   essential   feature   cannot   be

       enunciated in general terms, and there was some divergence

       of view about this in the former case, but this much is clear

       from the opinions set out above: it cannot include a change

       of policy."                                                        (Emphasis

       added)





32.         In  Bangalore   Woollen,   Cotton   and   Silk   Mills   Co.   Ltd.,


Bangalore   v.   Corporation   of   the   City   of   Bangalore   by   its


Commissioner, Bangalore City, AIR 1962 SC 1263, this  Court dealt


with a similar issue in a case where the legislature had conferred power


upon the Municipal Corporation  to determine on what other goods and


under   what   conditions   the   tax   should   be   levied.   In   that   case   the


legislature had prepared a list of goods which could be subjected to tax


and the rate  had also  been fixed  in addition thereto.  The  powers had


been   conferred   on   the   Municipal   Corporation.   This   Court   therefore


came to the conclusion that it was not a case of excessive delegation


which   may   be   held   to   be   bad   in   view   of   the   judgment   in  Hamdard


Dawakhana v. Union of India, AIR 1960 SC 554, rather it was a case


of conditional legislation.  




33.         In  Basant   Kumar   Sarkar   &   Ors.   v.   The   Eagle   Rolling


Mills Ltd. & Ors., AIR 1964 SC 1260,  this Court examined the issue





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of   extension   of     Employees   State   Insurance   Act,   i.e.   temporal


application   of   employees   insurance   legislation   and   held   that   it   was   a


case of conditional legislation and not of excessive delegation because


there was no element of delegation therein   at all.   The Court held as


under:


                            "Thus, it is clear that when extending the

       Act to different establishments, the relevant Government is

       given   the   power   to   constitute   a   Corporation   for   the

       administration of the scheme of Employees State Insurance.

       The course adopted by modern legislatures in dealing with

       welfare   scheme   has   uniformly   conformed   to   the   same

       pattern. The legislature evolves a scheme of socio-economic

       welfare,   makes   elaborate   provisions   in   respect   of   it   and

       leaves it to the Government concerned to decide when, how

       and in what manner the scheme should be introduced. That,

       in our opinion, cannot amount to excessive delegation."




34.         In view of the above, the law stands crystallised to the effect


that in case the legislature wants to delegate its power in respect of the


implementation   of   the   law   enacted   by   it,   it   must   provide   sufficient


guidelines,   conditions,   on   fulfillment   of   which,   the   Act   would   be


enforced  by  the  delegatee.  Conferring  unfettered,  uncanalised  powers


without   laying   down   certain   norms   for   enforcement   of   the   Act


tantamounts to abdication of legislative power by the legislature which


is not permissible in law. More so, where the Act has already come into





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force,   such   a   power   cannot   be   exercised   just   to   nullify   its


commencement thereof.





VIII.      LEGISLATIVE ARBITRARINESS:



35.       In  Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.,


AIR 1981 SC 487, this Court held that Article 14 strikes at  arbitrariness


because an action that is arbitrary, must necessarily involve negation of


equality.     Whenever   therefore,   there   is   arbitrariness   in   State   action,


whether   it   be   of   the  legislature  or   of   the   executive,   Article   14


immediately   springs   into   action   and   strikes   down   such   State   action.


(See also :  E.P. Royappa v. State of Tamil Nadu & Anr.,  AIR 1974


SC   555;   and  Smt.   Meneka   Gandhi   v.   Union   of   India   &   Anr.  AIR


1978 SC 597).




36.           In  M/s.  Sharma   Transport   rep.   by   D.P.   Sharma   v.


Government   of   A.P.   &  Ors.  AIR   2002   SC   322,     this   Court   defined


arbitrariness observing that party has to satisfy that the action was not


reasonable   and   was   manifestly   arbitrary.     The   expression   `arbitrarily'


means;   act   done   in   an   unreasonable   manner,   as   fixed   or   done


capriciously or at pleasure without adequate determining principle, not





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founded   in   the   nature   of   things,   non-rational,   not   done   or   acting


according to reason or judgment, depending on the will alone.




37.       In Bombay Dyeing & Manufacturing Co. Ltd. (3) v. Bombay


Environmental Action Group & Ors. AIR 2006 SC 1489,  this Court


held that arbitrariness on the part  of the legislature  so as to make the


legislation violative of Article 14 of the Constitution should ordinarily


be manifest arbitrariness.




38.        In   cases   of  Bidhannagar   (Salt   Lake)   Welfare   Assn.   v.


Central   Valuation   Board   &  Ors.  AIR   2007   SC   2276;     and  Grand


Kakatiya   Sheraton   Hotel   and   Towers   Employees   and   Workers


Union v. Srinivasa Resorts Limited & Ors. AIR 2009 SC 2337, this


Court held that a law cannot be declared ultra vires on the ground of


hardship but can be done so on the ground of total unreasonableness.


The   legislation   can   be   questioned   as   arbitrary   and   ultra   vires   under


Article 14.  However, to declare an Act ultra vires under Article14, the


Court  must   be   satisfied   in  respect   of  substantive   unreasonableness   in


the statute itself.




IX.      AMENDING ACT-IF STRUCK DOWN-WHETHER OLD

         LAW WILL REVIVE:





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39.       This   Court   in  Bhagat   Ram   Sharma  v.  Union   of   India   &


Ors.,  AIR 1988 SC 740  explained the distinction between repeal and


amendment observing that amendment includes abrogation or deletion


of a provision in an existing statute. If the amendment  of an existing


law is small, the Act prefaces to amend; if it is extensive, it repeals and


re-enacts it.




40.      In  State   of   Rajasthan   v.   Mangilal   Pindwal  AIR   1996   SC


2181, this Court held that when the statute is amended, the process of


substitution of statutory provisions consists of two parts:-


(i)      the old rule is made to cease to exist;


(ii)     the new rule is brought into existence in its place.


In other words, the substitution of a provision results in repeal of the


earlier provision and its replacement by the new provision. (See also:


Koteswar Vittal Kamath v. K.Rangappa Baliga & Co. AIR 1969 SC


504).



41.       In  Firm A.T.B. Mehtab Majid and Co.  v.  State of Madras


& Anr., AIR 1963 SC 928, this Court held:


          "22. It is a settled legal proposition that whenever

          an   Act   is   repealed,   it   must   be   considered   as   if   it

          had   never   existed.   The   object   of   repeal   is   to

          obliterate the Act from the statutory books, except





                                                                                      4


           for certain purposes as provided under Section 6

           of the General Clauses Act, 1897. Repeal is not a

           matter of mere form but is of substance. Therefore,

           on   repeal,   the   earlier   provisions   stand

           obliterated/abrogated/wiped   out   wholly   i.e.   pro

           tanto repeal"




42.       Thus,   undoubtedly,   submission   made   by   learned   senior


counsel on behalf of the respondents that once the Act stands repealed


and the amending Act is struck down by the Court being invalid and


ultra vires/unconstitutional on the ground of legislative incompetence,


the repealed  Act will  automatically revive  is preponderous and needs


no further consideration.



          This   very   Bench   in  State   of  Uttar   Pradesh   &   Ors.   v.


Hirendra Pal Singh & Ors., (2011) 5 SCC 305, after placing reliance


upon a large number of earlier judgments particularly   in  Ameer-un-


Nissa Begum  v.  Mahboob Begum & Ors.,  AIR 1955 SC 352;    B.N.


Tewari v. Union of India & Ors., AIR 1965 SC 1430; India Tobacco


Co.  Ltd.  v.  CTO,   Bhavanipore   &  Ors.,  AIR   1975  SC   155;  Indian


Express   Newspapers   (Bombay)   Private   Ltd.   &   Ors.  v.  Union   of


India   &   Ors.,  AIR   1986   SC   515;  West   U.P.   Sugar   Mills   Assn.  v.


State of U.P.,  AIR 2002 SC 948;  Zile Singh  v.  State of Haryana &


Ors.,  (2004)   8   SCC   1;  State   of   Kerala  v.  Peoples   Union   for   Civil





                                                                                4


Liberties,  Kerala   State   Unit   &   Ors.,  (2009)   8   SCC   46;    and  Firm


A.T.B. Mehtab Majid and Co. (supra)  reached the same conclusion.





43.        There is another limb of this legal proposition, that is, where


the  Act   is   struck   down  by   the  Court   being  invalid,   on  the   ground   of


arbitrariness in view of the provisions of Article 14 of the Constitution


or   being   violative   of   fundamental   rights   enshrined   in   Part-III   of   the


Constitution,   such   Act   can   be   described   as  void   ab-initio  meaning


thereby   unconstitutional,   still  born  or  having  no  existence  at  all.      In


such   a   situation,   the   Act   which   stood   repealed,   stands   revived


automatically.   (See:  Behram   Khurshid   Pesikaka  (Supra);   and


Mahendra Lal Jaini (Supra)





44.       In Harbilas Rai Bansal v. State of Punjab & Anr. AIR 1996


SC 857, while dealing with the similar situation, this Court struck down


the   Amending   Act   being   violative   of   Article   14   of   the   Constitution.


The Court further directed as under:


           "We   declare   the   abovesaid   provision   of   the

           amendment   as   constitutionally   invalid   and   as   a

           consequence restore the original provisions of the

           Act  which   were   operating   before   coming   into

           force of the Amendment Act."                     (Emphasis

           added)  





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45.        Thus, the law on the issues stands crystallised that in case the


Amending   Act   is   struck   down   by   the   court   for   want   of   legislative


competence or  is violative of any of the fundamental rights enshrined


in Part III of the Constitution, it would be un-enforceable in view of the


provision   under   Article   13(2)   of   the   Constitution   and   in   such


circumstances   the   old   Act   would   revive,   but   not   otherwise.   This


proposition   of   law   is,   however,   not   applicable   so   far   as   subordinate


legislation is concerned.    





X.       WHETHER   LEGISLATURE   CAN   OVERRULE   THE

         JUDGMENT OF THE COURT:




46.       A   Constitution   Bench   of   this   Court   in    Shri   Prithvi   Cotton


Mills   Ltd.   &   Anr.   v.   Broach   Borough   Municipality   &   Ors.,  AIR


1970 SC 192,  examined the issue and held as under:



                ".....When a legislature sets out to validate a tax

           declared by a court to be illegally collected under an

           ineffective   or   an   invalid   law,   the   cause   for

           ineffectiveness   or   invalidity   must   be   removed   before

           validation   can   be   said   to   take   place   effectively.   The

           most   important   condition,   of   course,   is   that   the

           legislature must possess the power to impose the tax,

           for,   if   it   does   not,   the   action   must   ever   remain

           ineffective   and   illegal.   Granted   legislative

           competence, it is not sufficient to declare merely that





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            the   decision   of   the   Court   shall   not   bind   for   that   it

            tantamounts   to   reversing   the   decision   in   exercise   of

            judicial power which the legislature does not possess

            or   exercise.   A   court's   decision   must   always   bind

            unless   the   conditions   on   which   it   is   based   are   so

            fundamentally   altered   that   the   decision   could   not

            have been given in the altered circumstances....."



47.    In S.R. Bhagwat & Ors. v. State of Mysore,  AIR 1996 SC 188,


a  similar   issue   was   considered   by   this   Court   while   considering   the


provisions of Karnataka State Civil Services (Regulation of Promotion,


Pay   &   Pension)   Act,   1973.   In   that   case,   the   provisions   of   that   Act


disentitled  deemed promotees to arrears for the period prior to actual


promotion.   These   provisions   were   held   to   be   not   applicable   where


directions  of  the  competent  court  against  the  State  had  become   final.


The Court observed that any action to take away the power of  judicial


decision   shall   be   ultra   vires   the   powers   of   the   State   legislature   as   it


encroached   upon   judicial   review   and   tried   to   overrule   the   judicial


decision   binding   between   the   parties.     The   binding   judicial


pronouncement   between   the   parties   cannot   be   made   ineffective   with


the   aid   of   any   legislative   power   by   enacting   a   provision   which   in


substance   overrules   such   a   judgment   and   is   not   in   the   realm   of   a


legislative   enactment   which   displaces   the   basis   or   foundation   of   the


judgment and uniformly applies to a class of persons concerned with





                                                                                           4


the  entire   subject  sought   to  be  covered  by   such   an  enactment  having


retrospective effect.





48.        While deciding the said case, this Court placed reliance on its


earlier   judgments   in   Re,  Cauvery   Water   Disputes   Tribunal,  AIR


1992 SC  522; and  G.C. Kanungo  v.  State  of Orissa,  AIR  1995  SC


1655.     In the former case, the Constitution Bench of this Court held


that   the   legislature   could   change   the   basis   on   which   a   decision   was


given by the Court and, thus, change the law in general, which would


affect  a  class of persons  and events   at large.     However,  it  cannot  set


aside   an   individual   decision   inter-parties   and   affect   their   rights   and


liabilities alone.   Such an act on the part of the legislature amounts to


exercising   the   judicial   power   of   the   State   and   functioning   as   an


appellate court or tribunal.   In the latter case, a similar view had been


reiterated observing that the award of the tribunal could not be nullified


by   an   Amendment   Act  having   recourse   to   the   legislative   power   as   it


tantamounts   to   nothing   else,   but   "the   abuse   of   this   power   of


legislature."





49.       In Madan Mohan Pathak & Anr. v. Union of India & Ors.,


AIR  1978  SC  803,    a    seven-Judge Bench   of  this  Court  considered  a





                                                                                     4


similar   issue   and   held   that   the   act   of   legislature   cannot   annul   a   final


judgment   giving effect to rights of any party.  A declarative judgment


holding   an   imposition   of   tax   invalid   can   be   superseded   by   a   re-


validation   statute.   But   where   the   factual   or   legal   situation   is


retrospectively   altered   by   an   act   of   legislature,   the   judgment   stands,


unless reversed by an appeal or review. Bringing a legislation in order


to nullify the judgment of a competent court would amount to trenching


upon the judicial power and no legislation is permissible which is meant


to set aside the result of the mandamus issued by a court even though,


the   amending   statute   may   not   mention   such   an   objection.   The   rights


embodied   in   a   judgment   could   not   be   taken   away   by   the   legislature


indirectly.



         A similar view has been reiterated in K. Sankaran Nair (Dead)


through LRs. v. Devaki Amma Malathy Amma  & Ors.,  (1996) 11


SCC 428.




50.         The   legislature   cannot   by   bare   declaration,   without   anything


more,   directly   overrule,   reverse   or   override   a   judicial   decision.


However it can, in exercise of the plenary powers conferred upon it by


Articles   245   and   246   of   the   Constitution,   render   a   judicial   decision





                                                                                           4


ineffective by enacting a valid law fundamentally altering or changing


the conditions on which such a decision is based.



(Vide: A. Manjula Bhashini & Ors. v. Managing Director, Andhra

Pradesh Women's Cooperative Finance Corporation Ltd. & Anr.,

(2009) 8 SCC 431).



51.       In view of the above, the law on the issue can be summarised


to the effect that a judicial pronouncement of a competent court cannot


be annulled by the legislature in exercise of its legislative powers   for


any reason whatsoever.   The legislature, in order to revalidate the law,


can re-frame the conditions existing prior to the judgment on the basis


of which certain statutory provisions had been declared ultra vires and


unconstitutional.



XI.      READING   OF   THE   STATEMENT   OF   OBJECTS   AND

         REASONS: WHILE INTERPRETING THE STATUTORY

         PROVISIONS:



52.  The Statement of Objects and Reasons appended to the Bill is not


admissible as an aid to the construction of the Act to be passed, but it


can be used for limited purpose for ascertaining the conditions which


prevailed at that time which necessitated the making of   the law, and


the   extent   and   urgency   of   the   evil,   which   it   sought   to   remedy.   The


Statement of Objects and Reasons may be relevant to find out what is


the  objective  of   any   given   statute   passed   by   the   legislature.   It   may




                                                                                      4


provide   for   the   reasons   which   induced   the   legislature   to   enact   the


statute. "For the purpose of  deciphering the objects and purport  of


the   Act,   the   court   can   look   to   the   Statement   of   Objects   and   Reasons


thereof".     (Vide:  Kavalappara   Kottarathil   Kochuni   @   Moopil


Nayar  v. The States  of Madras and Kerala & Ors., AIR 1960 SC


1080;   and  Tata Power Company Ltd. v. Reliance  Energy  Ltd. &


Ors., (2009) 16 SCC 659).



53.  In A. Manjula Bhashini & Ors. (Supra), this Court held as under:



       "The   proposition   which   can   be   culled   out   from   the

       aforementioned judgments is that although the Statement of

       Objects   and   Reasons   contained   in   the   Bill   leading   to

       enactment   of   the   particular   Act   cannot   be   made   the   sole

       basis   for   construing   the   provisions   contained   therein,   the

       same can be referred to for understanding the background,

       the antecedent state of affairs and the mischief sought to be

       remedied   by   the   statute.   The   Statement   of   Objects   and

       Reasons   can   also   be   looked   into   as   an   external   aid  for

       appreciating   the   true   intent   of   the   legislature  and/or   the

       object sought to be achieved by enactment of the particular

       Act or for judging reasonableness of the classification made

       by such Act." (Emphasis added)





54.         Thus,   in   view   of   the   above,   the   Statement   of   Objects   and


Reasons   of   any   enactment   spells   out   the   core   reason   for   which   the


enactment is brought and it can be looked into for appreciating the true


intent of the legislature or to find out the object sought to be achieved





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by   enactment   of   the   particular   Act   or   even   for   judging   the


reasonableness of the classifications made by such Act.





CASE ON MERITS:



55.        The   instant   case   requires   to   be   examined   in   the   light   of   the


aforesaid settled legal propositions, though it may not be necessary to


deal with all these issues in great detail as the High Court has already


dealt with the same elaborately.  



56.        In the instant case, as the Expert Committee had submitted a


report   and most  of the  members  had  given  their  opinion on  different


issues and as we have also examined the reports,  it is evident from the


same   that   each   member   had   pointed   out   certain   defects   in   the


curriculum as well as   in the text books etc.   There was no unanimity


on   any   particular   issue,   as   each   member   has   expressed   a   different


opinion on different issues/subjects.



57.        The counter affidavit dated 7.6.2011 was filed before the High


Court by Ms. D. Sabitha, the Secretary to the Government Education


Department   on   behalf   of  all   the   respondents   therein.     In   reply   to   the


Writ Petition she stated as under:





                                                                                         5


"I. Further the prayer for an issuance of writ of

declaration  declaring   that   the   decision   of   the

Cabinet   dated   22.5.2011   by   the   Government   of

Tamil   Nadu   to   withhold   the   implementation   of

the   Tamil   Nadu   Uniform   System   of   School

Education Act, 2010 for the academic year 2011-

12   as   published   vide   News   Release   No.   289   dt.

22.5.2011 as  null and void is not  sustainable in

law   for   the   sole   reason   that   the   policy   decision

taken   by   the   Cabinet   would   not   be   generally

subject to judicial review. It is further submitted

that the decision taken by the Cabinet to review

the   implementation   of   the   Uniform   System   of

School Education for Standards I to X is purely in

the interest of students, parents and public which

is within the domain of the popular Government..


II.   Further   the   averment   that   text   books   printed

would   be   wasted   and   there   would   be   a   loss

caused to the tune of 200 crore rupees seems to

have   been   made   without   understanding   the

implications   that   could   be   created   due   to   the

implementation   of   the  illegal   policy   formulated

by the  erstwhile   Government.   The  Government

has a mandate to ensure the quality of education

and welfare of the students.   It is with this intent

the present policy is being formulated......


III.        The State, therefore, proposes to appoint

a   high   powered   committee   consisting   of   experts

in   the   field   to   undertake   a   detailed   study  of   the

more   appropriate   system   to   be   adopted   for

ensuring   the   improvement   of   quality   of

education  and social justice by providing a level

playing field to all sections of society.


IV.        At this juncture, it is pointed out that the

books   that   have   been   printed   already   are

substandard   and   wanting   in   quality  and   if

followed,   would   lead   to   deterioration   of




                                                                        5


           academic   Standards   of   school   students   and

           therefore  the  Cabinet has  rightly taken a policy

           decision   after   thorough   deliberation  to   stall   the

           implementation   of   the   Uniform   System   of

           School   Education   Act,   2010   as   it   suffers   from

           illegality, irrationality and unconstitutionality....

           "      (Emphasis added)

 

         On  amendment  of  the  writ  petitions,   another  counter  affidavit


 was filed by Ms. D. Sabitha, the same officer, wherein she stated on


 oath, inter-alia, as under:


           "I.        This being so, the Government has taken

           a  decision   to   stall   the   implementation   of   the

           policy of the previous government that is devoid

           of   any   legal   sanction  and   has   constituted   a

           committee   to   formulate   an   appropriate   solution

           in order to redress the complications created due

           to the implementation of the illegal policy.


           II.......In the Cabinet meeting held on 22.5.2011,

           it   was   initially   decided   to   do   away  with   the

           uniform   Education   system.     Since   the   schools

           were reopening on 1st  June, 2011, orders had to

           be   issued   for   printing   of   textbooks.     It   is

           submitted   that   the   advertisement   for   inviting

           tenders   for   printing   textbooks   was   issued   on

           23.5.2011."


                      (Emphasis added)


58.        The High Court, after taking note of the counter affidavit filed


by   the   present   appellants   labeling   the   Act   2010   as  illegal,  irrational


and  unconstitutional,  after   it   had     already   undergone   an   intense


judicial   scrutiny   and   held   to   be   Constitutionally   valid   by   the   High




                                                                                    5


Court vide judgment and order dated 30.4.2010 and by this Court vide


judgment   and   order   dated   10.9.2010,   the   question   that     arises   for


consideration is   as to whether it was permissible for the Secretary of


the   Education   Department   to   label   the   Act   as   illegal   and


unconstitutional.   Does   such   a   conduct   amount   to   sitting   in   appeal


against the judgments of the High Court as well as of this Court or does


it not amount to an attempt to take away the effect of the judgments of


the High Court as well of this Court ?


59.        The High Court has taken note of these pleadings taken by the


State authorities :


           "From   a  perusal  of  the  counter   affidavit  filed  by

           the Secretary, School Education Department, it is

           manifestly clear that the Government has taken the

           consistent stand that the policy formulated by the

           previous   Government   by   implementing   the

           Uniform Syllabus System  was illegal  and that the

           amount   of   Rs.   200   crores   spent   for   printing   the

           textbooks  under  the  new  syllabus  was  because  of

           the wrong policy......"  (Emphasis added)




                      The   report   submitted   by   the   Expert   Committee,   in


fact,   did   not   contain   any   collective   opinion.     All   the   members   have


expressed their different views and most of the members had approved


the contents of the text books, in general, pointing out certain defects


which could be cured by issuing corrigendums or replacements etc.    




                                                                                    5


60.        Section 18 of the Act 2010 enables the State Government to


remove   difficulties,   if   any,   in   implementation   of   the   said   Act.   The


provisions thereof read as under:


           "If   any   difficulty   arises   in   giving   effect   to   the

           provisions   of   this   Act,   the   Government   may,   by

           order   published   in   the   Tamil   Nadu   Government

           Gazette,   make   such   provisions,   not   inconsistent

           with the provisions of this Act as appears to them

           to   be   necessary   or   expedient   for   removing   the

           difficulty;..."


                      Therefore,   the   amendment   itself   is   totally


unwarranted.     If   the   State   Government   was  facing   any   difficulty,   the


same could have been removed by issuing a Government order under


Section 18 of the Act which conferred all residuary powers on it.



           The nature of the defect as canvassed by the State counsel is


reflected   in   the   pleadings   that   indicates   an   undesirable   inclusion   of


certain chapters that do not subserve the purpose of a uniform standard


and   multicultural   educational   pattern.     The   contention   appears   to   be


that   such   material   may   damagingly   divert   the   mind   of   the   young


students towards a motivated attempt of individualistic glorification.  In


the   opinion   of   the   court,   if   such   material   does   create   any   adverse


impact or is otherwise targeted towards unwanted propaganda without


any   contribution   towards   the   educational   standard   sought   to   be





                                                                                    5


achieved,   then   such   material   upon   a   thorough   investigation   and


deliberation by the Expert Committee could be deleted with the aid of


Section 18 of the Act 2010.  It appears that the State Government while


introducing   the   Amendment   Act   2011   did   not   appropriately   focus


attention   on   the   provision   of   Section   18   quoted   hereinabove   that   are


inclusive   of   all   powers   that   may   be   required   to   remove   such


difficulties.   Had the said provision been carefully noted, there would


have been no occasion to suspend the implementation of the Act 2010.


What could have been done with the help of a needle was unnecessarily


attempted by wielding a sword from the blunt side. Not only this the


said provision was not even pointed out by the State machinery before


the High Court nor did its legal infantry choose to examine the same.


Even before us the learned counsel were unable to successfully counter


the availability of such powers with the State Government.



                      In   addition   to   that,   needless   to   re-emphasize,   the


High Court while dealing with the validity of the provisions of the Act


2010, had already conceded liberty to the State Government to remove


defects and had on the other hand struck down the offending provisions


in Section 14 thereof empowering the State Government to compel the


Education Board  to be bound on questions  of policy. Thus, the State





                                                                                    5


Government was left with sufficient powers to deal with the nature of


defects  appropriately   under  the  said  judgment  with a  statutory   power


available for that purpose under Section 18 of the Act 2010.




61.         It may be relevant to point out here that Statement of Objects


and   Reasons   given   to   the   Amendment   Act   2011   reveal   a   very   sorry


state of affairs and point out towards the intention of the legislature not


to   enforce   the   Act   2010   at   all.     Relevant   part   of   clause   9   of   the


Statement of Objects and Reasons of the Amendment Act 2011 reads


as under:



       "...the   State   proposes   to   appoint   a   high   powered

       committee consisting of experts in the field to undertake a

       detailed   study   of   the  more   appropriate   system   to   be

       adopted   for   ensuring   the   improvement   of   quality   and

       education  and social justice by providing a level playing

       field to all sections of society. .." (Emphasis added)



       The   aforesaid   quoted   part   of   the   same   makes   it   clear   that   the


Government intended to introduce a more appropriate system to ensure


the improvement of quality education, meaning thereby, that the State


has no intention to enforce the uniform education system as provided


under the Act 2010.





 62.     The relevant part of  Section 3 of the Act 2010 reads as under:




                                                                                        5


    3(1)   Every school in the State shall follow the common syllabus

    and text books as may be specified by the Board for each subject -



     (a) in Standards  I  and  VI,  commencing   from the  academic   year

            2010-2011;



     (b) in   Standards   II   to   V   and   Standards   VII   to   X   from   the

            academic year 2011-2012.



    (2)           Subject to the provisions of sub-section (1), every school in

                  the State shall -



    (a)           follow the norms fixed by the Board for giving instruction in

                  each subject;



    (b)           follow   the   norms   for   conducting   examination   as   may   be

                  specified  by the Board.



63.         After  the Amendment Act 2011, Section 3  reads as under:



    "3. Schools to follow common syllabus -



           (1)           Every   school   in   the   State   shall   follow   the   common

                         syllabus as may be specified by the Board for each subject

                         in  Standards 1 to X from such academic year as may

                         be   notified   by   the   Government  in   the   Tamil   Nadu

                         Government   Gazette.     The   Government   may   specify

                         different academic years for different Standards.



           (2)           Until   notification   under   sub-section   (1)   is   issued,   the

                         syllabus and text books for every school in the State shall

                         be as follows:

                  (a)     in Standards I and VI, the system as prevailing prior to

                          academic year 2010-11 shall continue; and

                  (b) in Standards II to V and VII to X, the existing system

                          shall continue,"    (Emphasis added)





                                                                                          5


64.   The legislature in its wisdom had enforced the Act 2010 providing


for common  syllabus  and text books  for Standards  I and VI from the


academic year 2010-2011 and for Standards II to V and VII to X from


the academic year 2011-2012,  the validity of this law has been upheld


by the High Court vide judgment and order dated 30.4.2010 and by this


Court vide order dated 10.9.2010.   Certain  directions had been issued


by   the   High   Court   which   could   be   carried   out   easily   by   the   State


exercising its administrative powers without resorting to any legislative


function. By the Amendment Act, even the application of Act 2010, so


far   as   Standards   I   and   VI   are   concerned,   has   also   been   withdrawn


without realising that students who have studied in academic year 2010-


11   would   have   difficulty   in   the   next   higher   class   if   they   are   given   a


different   syllabus   and   different   kind   of   text   books.     The   Amendment


Act   2011 provided that the students in Standards I and VI would also


revert back to the old system which had already elapsed.



65.    The Amendment Act 2011, in fact, nullified the earlier judgment


of the High Court dated 30.4.2010,  duly approved by the order of this


Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as


unfettered   and   uncanalised   power   has   been   bestowed   upon   the


Government   to   notify   the   commencement   of     the   uniform   education





                                                                                           5


system.  State Government may submit only to the extent that the High


Court itself   had given  option to  the State   to implement   the Common


Education System after ensuring compliance of directions issued by the


High Court itself.  However, no such liberty was available to the State


so far as Standards  I and VI  are concerned.  



66.       It   is   also   evident   from   the   record   that   after   the   new


Government was sworn in on 16.5.2011, tenders were invited to publish


books being taught under the old system on 21.5.2011 and subsequent


thereto,   it   was   decided   in   the   Cabinet   meeting   on   22.5.2011   not   to


implement the uniform education system.  Whole exercise of amending


the Act 2010 was carried out most hurriedly.   However, proceeding in


haste itself cannot be a ground of challenge to the validity of a Statute


though proceeding in haste amounts to arbitrariness and in such a fact-


situation   the   administrative   order   becomes   liable   to   be   quashed.   The


facts   mentioned   hereinabove   reveal   that   tenders   had   been   invited   on


21.5.2011   for   publishing   the   text   books,   taught   under   the   old   system


even prior to Cabinet meeting dated 22.5.2011.   Thus, a decision had


already been taken not to implement the Common Education System.



67.       If one crore  twenty lacs students are now to revert back to the


multiple   syllabus   with   the   syllabus   and   textbooks   applicable   prior   to





                                                                                    5


2010   after   the   academic   term   of     2011-12   has   begun,   they   would   be


utterly confused and would be put to enormous stress. Students can not


be put to so much strain and stress unnecessarily. The entire exercise by


the Government is therefore arbitrary, discriminatory and oppressive to


students, teachers and parents.



                   The State Government should have acted bearing in mind



that "destiny of a nation rests with its youths".  Personality of a child is


developed at the time of basic education during his formative years of


life.     Their   career   should   not   be   left   in   dolorific   conditions   with


uncertainty   to   such   a   great   extent.     The   younger   generation   has   to


compete in global market.  Education is not a consumer service nor the


educational institution can be equated with shops, therefore, "there are


statutory   prohibitions   for   establishing   and   administering   educational


institution   without   prior   permission   or   approval   by   the   authority


concerned."



       Thus,   the   State   Government   could   by   no   means   be   justified   in


amending the provisions of Section 3 of the Act 2010, particularly in


such   uncertain   terms.     Undertaking   given   by   the   learned   Advocate


General to the High Court that the Act 2010 would be implemented in





                                                                                    6


 the academic  year 2012-13, cannot be a  good reason  to hold the Act


 2011 valid.



68         Submissions   advanced   on   behalf   of   the   appellants   that   it   is


within   the   exclusive   domain   of   the   legislature   to   fix   the   date   of


commencement of an Act,   and court has no competence to interfere in


such a matter, is totally misconceived for the reason that the legislature


in its wisdom had fixed the dates of commencement of the Act though in


a   phased   manner.     The   Act   commenced   into   force   accordingly.     The


courts   intervened   in   the   matter   in   peculiar   circumstances   and   passed


certain orders in this regard also.  The legislature could not wash off the


effect   of   those   judgments   at   all.     The   judgments   cited   to   buttress   the


arguments,   particularly   in  A.K.   Roy   v.   Union   of   India   &   Anr.,  AIR


1982 SC 710; Aeltemesh Rein v. Union of India & Ors., AIR 1988 SC


1768; Union of India v. Shree  Gajanan Maharaj Sansthan, (2002) 5


SCC 44; and Common Cause v. Union of India & Ors., AIR 2003 SC


4493, wherein   it has  been  held  that a  writ   in the  nature  of mandamus


directing the Central Government to bring a statute or a provision in a


statute into force in exercise of powers conferred by Parliament in that


statute cannot be issued, stand distinguished.





                                                                                         6


69.        As   explained   hereinabove,   the   Amendment   Act   2011,   to   the


extent it applies to enforcement of Act 2010, nullified the judgment of


the High Court dated 30.4.2010 duly approved by this Court vide order


dated 10.9.2010.   Thus, we concur with the conclusion reached by the


High Court in this regard.



70.        To summarise our conclusions:



(i)        The   Act   2010   was   enacted   to   enforce   the   uniform   education


system in the State of Tamil Nadu in order to impart  quality education


to   all   children,   without   any   discrimination   on   the   ground   of   their


economic, social or cultural background.


(ii)      The   Act   itself   provided   for   its   commencement   giving   the


academic years though, in phased programme i.e. for Standards I to VI


from   the   academic   year   2010-2011;   and   for   other   Standards   from


academic year 2011-2012, thus, enforcement was not dependent on any


further notification.


(iii)     The   validity   of   the   Act   was   challenged   by   various   persons/


institutions and societies, parents of the students, but mainly by private


schools   organisations,   opposing   the   common   education   system   in   the


entire State. The writ petitions were dismissed upholding the validity of


the   Act.   However,   few   provisions,   particularly,   the   provisions   of


Sections   11,   12   and   14   were   struck   down   by   the   High   Court   vide


judgment   and   order   dated   30.4.2010.   The   said   judgment   of   the   High


Court   was   duly   approved   by   a   speaking   order   of   this   Court   dated


10.9.2010. Certain directions had been given in the said judgment by the





                                                                                  6


High Court which could have been complied with by issuing executive


directions.   Moreover,   directions   issued   by   the   High   Court   could   be


complied   with   even   by   changing   the   Schedule   as   provided   in   the


judgment dated 30.4.2010 itself.


(iv)       Section   18   of  the   Act   2010   itself   enabled   the   Government   to


issue   any   executive   direction   to   remove   any   difficulty   to   enforce   the


statutory provisions of the Act 2010. The Act 2010   itself provided for


an   adequate   residuary   power   with   the   government   to   remove   any


difficulty in enforcement of the Act 2010, by issuing an administrative


order.


(v)        Justification   pleaded   by   the   State   that   Amendment   Act   2011


was brought to avoid contempt proceedings as the directions issued by


the  High   Court  could   not  be   complied   with,   is   totally   a   misconceived


idea and not worth acceptance.


(vi)       The new government took over on 16.5.2011 and immediately


thereafter, the Government received representations from various private


schools/organizations   on   17th/18th  May,   2011   to   scrap   the   uniform


education system. As most of   these representations were made by the


societies/organisations who had earlier challenged the validity of the Act


2010   and   met   their   waterloo   in   the   hierarchy   of   the   courts,   such


representations were, in fact, not even  maintainable and, thus could  not


have been entertained by the Government.


(vii)      Before   the   first   Cabinet   meeting   of   the   new   Government     on


22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books


under   the   old   education   system.   It   shows   that   there   had   been   a   pre-


determined   political   decision   to   scrap   the   Act   2010.   The   Cabinet   on





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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.





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(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





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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



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 for   Standards II to V and VII to X, common education system would


 definitely   be   implemented   from   academic   year   2011-12.   Such   pious


 hope of so many stakeholders could not be betrayed. Rolling back the


 Act 2010 at this belated stage and withdrawal thereof even for Standard


 I and VI would be unjust, iniquitous and unfair to all concerned.  


 (xxiii)       The Amendment Act 2011, in fact, has the effect of bringing


 back the effect of Section 14 of the Act 2010 which had been declared


 ultra vires by the High Court for the reason that the Board could not be


 given binding directions by the State Government.


(xxiv)      Even if a very few schools could not exercise their choice of


multiple text books, it could not be a ground of scrapping the Act 2010.


Steps should have been taken to remove the discrepancy.


(xxv)           Passing   the   Act   2011,   amounts   to   nullify   the   effect   of   the


High   Court   and   this   Court's   judgments   and   such   an   act   simply


tantamounts to subversive of law.



 71.        In   view   of   the   above,   the   appeals   are   devoid   of   any   merit.


 Facts   and   circumstances   of   the   case   do   not   present   special   features


 warranting any interference by this Court.




                        The appeals are accordingly dismissed.   The appellants are


 directed to enforce the High Court judgment impugned herein within a


 period of 10 days from today.





                                                                                          6


                             .................

............J.

                                   (J.M.

  PANCHAL)




                                   ............

  .................J.

                             (DEEPAK

  VERMA)




                                   ............

  .................J.

  New Delhi,                       (Dr.   B.S.

  CHAUHAN)

  August 9, 2011





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