TaxTMI 
TaxTMI 
2011 (8) TMI 1086
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....given by this Court vide order dated 14.6.2011. 2. FACTS: A. In the State of Tamil Nadu, there had been different Boards imparting basic education to students upto 10th standard, namely, State Board, Matriculation Board, Oriental Board and Anglo-Indian Board. Each Board had its own syllabus and prescribed different types of textbooks. In order to remove disparity in standard of education under different Boards, the State Government appointed a Committee for suggesting a uniform system of school education. The said Committee submitted its report on 4.7.2007. Then another Committee was appointed to implement suggestions/recommendations made by the said Committee. B. During the intervening period, The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter called the Act 2009), enacted by the Parliament, came into force with effect from 1.4.2010 providing for free and compulsory education to every child of the age of 6 to 14 years in a neighbourhood school till completion of elementary education i.e. upto 8th standard. The Act 2009 provided that curriculum and the evaluation procedure would be laid down by an Academic Authority to be specified by the appropriate S....
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....Nadu Textbook Corporation. E. As many as 14 writ petitions were filed in the High Court of Madras challenging the validity of various provisions of the Act 2010. A Division Bench of the High Court vide judgment and order dated 30.4.2010 held that the provisions of Sections 11, 12 and 14 were unconstitutional and struck down the same while the Court issued elaborate directions for implementation of the common syllabus and the textbooks for Standards I and VI by the academic year 2010-11; and for all other Standards by the academic year 2011-12 or until the State makes the norms and the syllabus and prepares the textbooks in advance for the same. Further directions were issued by the Court to the State Government to bring the provisions of the Act 2010 in consonance with the Act 2009 and notify the Academic Authority and the State Advisory Council under the Act 2009. The State was also directed to indicate approved textbooks from which private unaided schools could choose suitable for their schools. The Court further directed the Government to amend the Act to say that the common/uniform syllabus was restricted to five curricular subjects, namely, English, Tamil, Mathematics, ....
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....ourt modified the said interim order inter-alia, directing constitution of a committee of experts, which the State Government had already undertaken to appoint, to examine ways and means for implementing the uniform education system, common syllabus, and the textbooks which were to be provided for Standards II to V and VII to X under the Act 2010. It requested the High Court to determine if such textbooks and the amended syllabus would be applicable to Standards II to V and VII to X keeping in view the provisions of the amended Act. J. In pursuance of the said order, an Expert Committee was constituted and after having several meetings, a joint report was submitted to the High Court. The High Court after considering the said report, vide judgment and order dated 18.7.2011, found fault with the report of the Expert Committee and struck down Section 3 of Amendment Act 2011 with a direction that the State shall distribute the textbooks printed under the uniform system of education to enable the teachers to commence classes, and complete distribution of textbooks on or before 22.7.2011. Hence, these appeals. RIVAL SUBMISSSIONS: 3. Shri P.P. Rao, Shri C.A. Sundaram, Dr. Rajeev....
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....k 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. 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 set....
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....re 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 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 r....
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.... 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). There has been a campaign that right to education under Article 21-A of our Constitution be read in conformit....
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.... 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: "....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 ....
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....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, 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 Amendin....
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....o 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. 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 dec....
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....y 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 but irrelevant to the entrustment. When the custodian of power is influenced i....
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....e extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law can be made 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 ....
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....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 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 ....
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....iven 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 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 ....
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....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 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 ma....
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....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 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 ....
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........." 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 the entire subject sought to be covered by such an enactment having retrospective effect. 48. While deciding....
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....hashini & 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 provide for the reasons which induc....
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....t on behalf of all the respondents therein. In reply to the Writ Petition she stated as under: "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 ens....
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....igh Court as well as of this Court or does it not amount to an attempt to take away the effect of the judgments of the High Court as well of this Court ? 59. The High Court has taken note of these pleadings taken by the State authorities : "From a perusal of the counter affidavit filed by the Secretary, School Education Department, it is manifestly clear that the Government has taken the consistent stand that the policy formulated by the previous Government by implementing the Uniform Syllabus System was illegal and that the amount of Rs. 200 crores spent for printing the textbooks under the new syllabus was because of the wrong policy......" (Emphasis added) The report submitted by the Expert Committee, in fact, did not contain any collective opinion. All the members have expressed their different views and most of the members had approved the contents of the text books, in general, pointing out certain defects which could be cured by issuing corrigendums or replacements etc. 60. Section 18 of the Act 2010 enables the State Government to remove difficulties, if any, in implementation of the said Act. The provisions thereof read as under: "If any difficulty arises in givi....
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....the Education Board to be bound on questions of policy. Thus, the State Government was left with sufficient powers to deal with the nature of defects appropriately under the said judgment with a statutory power available for that purpose under Section 18 of the Act 2010. 61. It may be relevant to point out here that Statement of Objects and Reasons given to the Amendment Act 2011 reveal a very sorry state of affairs and point out towards the intention of the legislature not to enforce the Act 2010 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 educat....
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....which had already elapsed. 65. The Amendment Act 2011, in fact, nullified the earlier judgment of the High Court dated 30.4.2010, duly approved by the order of this Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as unfettered and uncanalised power has been bestowed upon the Government to notify the commencement of the uniform education system. State Government may submit only to the extent that the High Court itself had given option to the State to implement the Common Education System after ensuring compliance of directions issued by the High Court itself. However, no such liberty was available to the State so far as Standards I and VI are concerned. 66. It is also evident from the record that after the new Government was sworn in on 16.5.2011, tenders were invited to publish books being taught under the old system on 21.5.2011 and subsequent thereto, it was decided in the Cabinet meeting on 22.5.2011 not to implement the uniform education system. Whole exercise of amending the Act 2010 was carried out most hurriedly. However, proceeding in haste itself cannot be a ground of challenge to the validity of a Statute though proceeding in haste amounts to a....
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....ments cited to buttress the arguments, particularly in A.K. Roy v. Union of India & Anr., AIR 1982 SC 710; Aeltemesh Rein v. Union of India & Ors., AIR 1988 SC 1768; Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44; and Common Cause v. Union of India & Ors., AIR 2003 SC 4493, wherein it has been held that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued, stand distinguished. 69. As explained hereinabove, the Amendment Act 2011, to the extent it applies to enforcement of Act 2010, nullified the judgment of the High Court dated 30.4.2010 duly approved by this Court vide order dated 10.9.2010. Thus, we concur with the conclusion reached by the High Court in this regard. 70. To summarise our conclusions: (i) The Act 2010 was enacted to enforce the uniform education system in the State of Tamil Nadu in order to impart quality education to all children, without any discrimination on the ground of their economic, social or cultural background. (ii) The Act itself provided for its commencement giving the academi....
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....decision to scrap the Act 2010. The Cabinet on 22.5.2011 had taken a decision to do away with the Act 2010 and brought the Ordinance for that purpose. (viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and textbooks till then. (ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of the decision of the Cabinet in this regard. (x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system. (xi) The Secretary of School Education Department had filed affidavits before t....
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....igh 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 earl....