Supreme Court of India
STATE OF TAMIL NADU & ORS.versusK. SHYAM SUNDER & ORS.
- Citation
- 2011 INSC 555
- Decided
- 9 August 2011
- Disposal
- Dismissed
- Bench
- M PANCHAL
Holding
The Amendment Act 2011 is unconstitutional, arbitrary and violative of Article 14, and cannot nullify the effect of the High Court and Supreme Court judgments; therefore Section 3 of the Amendment Act is struck down and the 2010 Act remains valid.
Summary
The Tamil Nadu government enacted the Uniform System of School Education Act, 2010 to introduce a common syllabus and textbooks for all schools, which was upheld by the High Court and the Supreme Court after certain provisions were struck down. After a change of government in 2011, the new administration hurriedly passed the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011, repealing key provisions of the 2010 Act and attempting to scrap the uniform system. Numerous writ petitions challenged the amendment as arbitrary, colourable legislation that violated Article 14, Article 13(2) and the right to education under Article 21‑A. The Supreme Court held that the amendment could not nullify the effect of the earlier judgments, that Section 18 of the 2010 Act provided sufficient power to address any difficulties, and that the amendment was an unlawful attempt to overturn a judicial decision. Consequently, Section 3 of the Amendment Act was struck down and the 2010 Act remained in force. The Court dismissed the appeals and directed the State to implement the High Court’s earlier order.
Issues considered
- The constitutional validity of the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011
- Whether a legislature can nullify the effect of a judicial judgment by amendment
- Whether the amendment amounts to colourable or arbitrary legislation violating Article 14
- Whether the amendment contravenes Article 13(2) and the right to education under Article 21‑A
- Whether Section 18 of the 2010 Act suffices to address implementation difficulties
- Whether a change of policy due to a change of government is permissible
Legislation cited
- Constitution of Indias. Article 12, s. Article 13(2), s. Article 14, s. Article 21-A, s. Article 245, s. Article 246
- General Clauses Act, 1897s. 6
- Right of Children to Free and Compulsory Education Act, 2009
- Tamil Nadu Uniform System of School Education Act, 2010s. 11, s. 12, s. 14, s. 18, s. 3
- Tamil Nadu Uniform System of School Education (Amendment) Act, 2011s. 3
Subjects
Uniform education systemLegislative arbitrarinessColourable legislationArticle 14Article 13(2)Right to educationArticle 21-AJudicial reviewAmendment ActChange of government policyExpert committee
Judgment
[2011] 11 S.C.R. 1094
A STATE OF TAMIL NADU & ORS.
v.
K. SHYAM SUNDER & ORS.
(Civil Appeal Nos.6015-6027 of 2011)
AUGUST 9, 2011
B
[J.M. PANCHAL, DEEPAK VERMA AND
DR. B.S. CHAUHAN, JJ.]
Tamil Nadu Uniform System of School Education Act,
c 2010:
Object of its enactment - Held: To enforce the uniform
education system in the State of Tamil Nadu in order to impart
quality education to all children, .,,..ithout any discrimination on
0 the _ground of their economic, social or cultural background.
s. 3 (amended by Act 2011) - Validity of - The Act 2010
was enacted to enforce the uniform education system in the
State of Tamil Nadu and was helj constitutionally valid by
High Court and Supreme Court - After change of State
E Government, tenders invited for publishing text books taught
under the old system and subsequent thereto, it was decided
in the Cabinet meeting not to implement the uniform
education system - The new Government amended the Act
2010 by the Amendment Act 2011 - Held: Whole exercise
F of amending the Act 2010 was carried out most hurriedly -
The entire exercise by the Government was arbitrary,
discriminatory and oppressive to students, teachers and
parents - One crore twenty lacs students could not be
expected to revert back to the syllabus and textbooks
G applicable prior to 2010 after the aoademic term of 2011-12
has begun as they would be utterly confused and would be
put to enormous stress - State Government should have
acted bearing in mind that "destiny of a nation rests with its
H 1094
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1095
SUNDER & ORS.
youths" - Tamil Nadu Uniform System of School Education A
(Amendment) Act, 2011.
s. 18 - Scope of - Discussed.
TAMIL NADU UNIFORM SYSTEM OF SCHOOL
EDUCATION (AMENDMENT) ACT, 2011: B
Validity of the Act - Held: Not valid - High Court as well
as the Supreme Court had upheld the validity of the Act 2010
- The Amendment Act nul/ified the effect of the judgment of
the High Court approved by Supreme Court and repealed the c
Act 2010 - Passing the Act 2011, amounted to nullify the
effect of the High Court and Supreme Court's judgments and
such an act simply tantamounted to subversive of law - Thus,
the Amendment Act was an arbitrary piece of legislation and
violative of Article 14 and was mere pretence to do away the 0
Uniform System of Education in terms of Act 2010 - s.18 of
Act 2010 itself enabled the Government to issue any
executive direction to remove any difficulty to enforce the
statutory provisions of the Act 2010 - Thus, it was not
permissible for the legislature to annul the effect of the said E
judgments by the Amendment Act 2011 - Tamil Nadu
Uniform System of School Education Act, 2010- Constitution
of India, 1950 - Article 14.
ADMINISTRATIVE LAW:
F
Change of policy with the change of Government -
Propriety - Held: The Government has to rise above the
nexus of vested interests and nepotism and eschew window-
dressing - Unless it is found that act done by the authority
earlier in existence is either contrary to statutory provisions, G
is unreasonable, or is against public interest, the State should
not change its stand merely because the other political party
has come into power - The principles of governance have to
be tested on the touchstone of justice, equity, fair play - In
the instant case, Uniform Education system was brought in H
1096 SUPREME COURT REPORTS [2011) 11 S.C.R.
A terms of the Act 2010 - Change of government- Before the
first Cabinet meeting of the new Government, tenders invited
to publish the books under the old education system - This
would show that there was a pre-determined political decision
to scrap the Act 2010 which was arbitrary and oppressive to
B students, teachers and parents - Tamil Nadu Uniform System
of School Education (Amendment) Act, 2011.
Colourable legislation - Held: When power is exercised
in bad faith to attain ends beyond the sanctioned purposes
C 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 - If the legislature is competent to pass a
D 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
E Statute - Legislation.
Expert body's opinion - Scope of interference by court -
Held: Courts lack expertise especially in disputes relating to
policies of pure academic educational matters - Therefore,
F generally it should abide by the opinion of the Expert Body-
Normal/y 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
G generally can be.
State action - Arbitrariness in - Held: Whenever there
is arbitrariness in State action, whether it be of the legislature
or of the executive, Article 14 of the Constitution immediately
springs into action and strikes down such State action.
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1097
SUNDER & OR$.
CONSTITUTION OF IND/A, 1950: A
Article 13(2) - Held: Article 13(2) prohibits the State from
making any law which takes away or abridges the rights
conferred by Part-Ill of the Constitution and provides that any
law made in contravention of this Clause shall, to the extent 8
of contravention be void - 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) - The effect
of the declaration of a statute as unconstitutional amounts to C
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.
Article 21-A - Right to education - Held: Is a fundamental D
right u!Article 21-A - 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 - Education. E
DOCTRINES/PRINCIPLES:
Doctrine of lifting veil - Held: 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 F
ascertain its true nature and character. and the impact of the
Act - Thus, courts may examine with some strictness the
substance of the legislation and for that purpose, the court has
to look behind the form and appearance thereof to discover
the true character and nature of the legislation - Its purport G
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 H
1098 SUPREME COURT REPORTS [2011] 11 S.C.R.
A legislature resolved to cure and the true reason for the
remedy.
What cannot be done directly, cannot be done indirectly
- Held: It is a settled proposition of law that what cannot be
done directly, is not permissible to be done obliquely,
8
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 il/ud" - An authority
C cannot be permitted to evade a law by "shift or contrivance" -
Maxim.
EDUCATION/EDUCATIONAL INSTITUTIONS:
Uniform Education system - Historical background for
0 implementation of - Discussed.
LEGISLATION:
Conditional legislation - Held: In case the legislature
wants to delegate its power in respect of the implementation
E of the law enacted by it, it must provide sufficient guidelines,
conditions, on fulfillment of which, the Act would be enforced
by the delegate - Conferring unfettered, uncana/ised powers
without laying down certain norms for enforcement of the Act
tantamounts to abdication of legislative power by the
F legislature which is not permissible in law - More so, where
the Act has already come into force, such a power cannot be
exercised just to nullify its commencement thereof -
Administrative law.
G Amending Act, if struck down whether old law would revive
- Held: Where the Amendment 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-Ill of the Constitution,
such Act can be described as void ab-initio - In such a
H situation, the Act which stood repealed, stands revived
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1099
SUNDER & ORS.
automatically - This proposition of law is, however, not A
applicable so far as subordinate legislation is concerned -
Constitution of India, 1950 - Article 13(2).
Bringing a legislation in order to nullify the judgment of
a competent court - Held: Would amount to trenching upon
8
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 - The
legislature cannot by bare declaration, without anything more, C
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 ineffective by enacting a valid law
fundamentally altering or changing the conditions on which D
such a decision is based - 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
- Judgment. E
INTERPRETATION OF STATUTES:
Reading of statement of Objects and Reasons while
interpreting statute - Held: The Statement of Objects and
Reasons appended to the Bill is not admissible as an aid to F
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 of any G
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 by enactment of the particular Act or even for judging
the reasonableness of the classifications made by such Act. H
1100 SUPREME COURT REPORTS [2011] 11 S.C.R.
A JUDGMENT/ORDER:
Nullifying the judgment of a competent court by bringing
a legislation - Permissibility - Held: A judicial pronouncement
of a competent court cannot be annulled by the legislature in
exercise of its legislative powers for any reason whatsoever.
8
In the State of Tamil Nadu, there were different
Boards. Each Board had its own syllabus and prescribed
different types of textbooks. This resulted in disparity in
standard of education. In order to remove the disparity,
C State Government appointed Committee for suggesting
a uniform system of school education. During the
intervening period, the Right of Children to Free and
Compulsory Education Act, 2009 was enacted.
D The Cabinet of the State Government decided on
29.8.2009 to implement uniform system of school
education. To give effect to the decision of the Cabinet,
the Tamil Nadu Uniform System of School Education Act,
2010 was enacted. Section 3 of the Act 2010 provided that
E the Act would commence: in Standards I & VI from the
academic year 2010-11; and 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
F 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.
Several writ petitions came to be filed challenging
G the validity of 2010 Act. The High Court by judgment
dated 30.4.2010 held that the provisions of Sections 11,
12 and 14 of the Act 2010 were unconstitutional and
struck down the same and issued elaborate directions for
implementation of the common syllabus and the
H textbooks for Standards I and VI by the academic year
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1101
SUNDER & ORS.
2010-11; and for all other Standards by the academic year A
2011-12 or until the State made the norms and the
syllabus and prepared 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 B
Authority and the State Advisory Council under the Act
2009. The State was also directed to indicate approved
textbooks from which private unaided schools c()uld
choose those which are suitable for their schools. The
Court further directed the Government to amend the Act, c
to say that the common/uniform syllabus was restricted
to curricular subjects which the schools were bound to
follow, but not in respect of the co-curricular subjects.
The judgment of the High Court was duly approved
by the Supreme Court by order dated 10.9.2010. The D
Board approved the syllabus for uniform system.
However, on 16.5.2011, there was change of the State
Government. The new Government amended the Act
2010 by the Amendment Act 2011, by which it substituted
Section 3 by a new Section providing that the schools E
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 amendment also
omitted Sections 11, 12 and 14 from the Act 2010 since F
those Sections were struck down by the High Court as
unconstitutional. New academic session was to
commence an 1.6.2011 and the Amendment Act 2011
came into force on 7.6.2011.
G
Several writ petitions were filed challenging the
Amendment Act. The High Court by order dated 10.6.2011
stayed the operation of the Amendment Act 2011, but
gave liberty to the State Government to conduct a
detailed study of the common syllabus and common
H
1102 SUPREME COURT REPORTS [2011] 11 S.C.R.
A textbooks. The said interim order was challenged before
the Supreme Court. The Supreme modified the said
interim order by order dated 14.6.2011 inter-alia, directing
that the academic Scheme in force for the Academic year
2010-11 for Standards I and VI would continue to be in
B force in all respects for the Academic year 2011-12 as
well; that each text book and to what extent the amended
syllabus would be applicable to every course, should be
finally determined by the High Court keeping in view the
amended provisions of the Act and its impact; and
c 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.
0
The Expert Committee was constituted and gave its
report to the High Court. The High Court considered the
said report by judgment dated 18.7.2011, found fault with
the report of the Expert Committee and struck down
E Section 3 of Amendment Act 2011. It held that the
Committee so constituted may not be justified in
submitting the report stating that the entire uniform
system of education be scrapped and the text books
already provided for be discarded; that the Expert
F 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; that the
G Committee members were not of the unanimous opinion
that the uniform syllabus and common text books have
to be discarded from the current year; that in the order
dated 10.6.2011, the High Court had directed the
Government to notify the approved text books after
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1103
SUNDER & ORS.
conducting the study with a view to comply with the A
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 were
discarded. by the State; that the State had exceeded its
power in bringing the Amending Act to postpone an B
enactment which has already come into force. As there
was a sudden change in the policy of the Government
from its predecessor immediately after coming into power
the Court had to see the impact of the amendment,
notwithstanding the competence of the legislature to c
pass an Amendment Act; that 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;
that the State has sought to achieve indirectly what could
0
not be achieved directly as it was prevented from doing
so in view of the judgment of the Division Bencti which
upheld the validity of the Parent Act 201 O; ~hat 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. E
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; that if the
impugned Amending Act has to be given effect to, it
would result in unsettling various issues and the larger F
interest of children would be jeopardized. The instant
appeals were filed challenging the order of the High
Court.
Dismissing the appeals, the Court G
HELD: 1.1. 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
H
1104 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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
c 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
0
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 Nadu,
there has been a demand from the public at large to bring
E 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
F which recommended to introduce a common education
system after abolishing the four different Boards which
was 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.
G S. Muthukumaran Committee which also submitted its
recommendations to the Government to implement a
common education system upto Xth standard. [Para 6]
[1138-D-H; 1139-A-C]
1.2. The right to education is a Fundamental Right
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1105
SUNDER & ORS.
under Article 21-A inserted by the 86th amendment of the A
Constitution. Even before the said amendment, this Court
has treated the right to education as a fundamental right.
There has been a campaign that right to education under
Article 21-A of Indian Constitution be read in conformity
with Articles 14 and 15 of the Constitution and there must B
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 c
ground of their economic, . social and cultural
background. The propagators of this campaign
canvassed that uniform educatio.n system would achieve
the code of common cuUure, removal of disparity,
depletion of discriminatory values in human relations. It 0
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 uniform Civil code
as it may help in diminishing opportunities to those who
foment fanatic and fissiparous tendencies. [Para 7] [1139- E
D-H; 1140-A-C) .
Miss Mohini Jain v. State of Kamataka & Ors. AIR 1992
SC 1858: 1992 (3) SCR 658; Unni Krishnan, J.P. & Ors. etc.
etc. v. State of A.P & Ors. Etc. AIR 1993 SC 2178: 1993 (1) F
SCR 594; TM.A. Pai Foundation & Ors. v. State of Karnataka
& Ors. (2002) 8 SCC 481: 2002 (3) Suppl. SCR 587; Rohit
Singhal & Ors. v. Principal, Jawahar N. Vidyalaya & Ors. AIR
2003 SC 2088: 2002 (5) Suppl. SCR-515; State ofOrissa v.
Mamta Mohanty (2011) 3 SCC 436; Osmania University G
Teachers' Assn. v. State of A.P. & Anr. AIR 1987 SC 2034. -
relied on.
Brown v. Board of Education, 347 U.S. 483 (1954);
Plessy v. Ferguson 163 U.S. 537 (1896) - referred to.
H
1106 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 2. The legal issues involved in the instant case are:
I CHANGE OF POLICY WITH THE CHANGE OF
GOVERNMENT:
The Government has to rise above the nexus of
8 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
C 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. Unless it is found that act done by the
authority earlier in existence is either contrary to statutory
D 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. [Paras 16, 20] [1145-G-H; 1147-
E C]
Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc. etc.
AIR 2003 SC 2562; State of Karnataka & Anr. v. All India
Manufacturers Organisation & Ors. AIR 2006 SC 1846; Statej
of UP. & Anr. v. Johri Mal AIR 2004 SC 3800; State of
F Haryana v. State of Punjab & Anr. AIR 2002 SC 685; M./.
Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors. AIR 1999
SC 2468 - relied on.
II. COLOURABLE LEGISLATIONS:
G
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
H one for which the power is entrusted, guided by an
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1107
SUNDER & ORS.
extraneous consideration, whether good or bad but A
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 B
design. 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 c
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
0
of the legislature to enact that Statute. [Paras 21, 22]
[1147-E-H; 1148-A]
The State of Punjab & Anr. v. Gurdia/ Singh & Ors. AIR
1980 SC 319; K.C. Gajapati Narayan Deo & Ors. v. State of
Orissa AIR 1953 SC 375: 1954 SCR 1; R.S. Joshi, Sa/es Tax E
Officer, Gujarat & Ors. v. Ajit Mills Limited & Anr. AIR 1977
SC 2279:1978 (1) SCR 338; K. Nagaraj & Ors. v. State of
Andhra Pradesh & Anr. AIR 1985 SC 551: 1985 (2) SCR 579;
Welfare Assocn. A.R.P., Maharashtra & Anr. v. Ranjit P. Gohil
& Ors. AIR 2003 SC 1266: 2003 (2) SCR 139; State of Kera/a F
& Anr. v. Peoples Union for Civil Liberties, Kera/a State Unit
& Ors. (2009) 8 SCC 46: 2009 (11) SCR.142 - relied on.
Ill. LAWS CONTRAVENING ARTICLE 13(2):
The legislative competence can be adjudged with G
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
H
1108 SUPREME COURT REPORTS [2011] 11 S.C.R.
A takes away or abridges the rights conferred by Part-Ill of
the Constitution and provides that any law made in
contravention of this Clause shall, to the extent of
contravention be void. The effect of the declaration of a
statute as unconstitutional amounts to as if it has never
s 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
c 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. [Pars 23, 25) (1148-F-G; 1150-A-D]
Deep Chand & Ors. v. State of U.P. & Ors. AIR 1959 SC
D 648: 1959 Suppl. SCR 8; Mohd. Shaukat Hussain Khan v.
State of A.P. AIR 1974 SC 1480: 1978 (1) SCR 338; Behram
Khurshid Pesikaka v. State of Bombay AIR 1955 SC 123:
1955 SCR 613; Mahendra Lal Jaini v. State of Uttar Pradesh
& Ors. AIR 1963 SC 1019: 1963 Suppl. SCR 912 - relied
E on.
IV. DOCTRINE OF LIFTING THE VEIL:
In order to test the constitutional validity of the Act,
where it is alleged that the statute violates the
F fundamental rights, it is necessary to ascertain its true
nature and character and the impact of the Act. Thus,
courts may examine with some strictness the substance
of the legislation and for that purpose, the court has to
look behind the form and appearance thereof to discover
G 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
H which it intended to suppress, the remedy for the disease
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1109
SUNDER & ORS.
Nhich,the leg!slatqre resolved to cure and the true reason A
for the rernedy.JPara 26) [1150-E-G]
Dw~rkadas ,:Shrinivas v. The Sho/apur Spinning &
Weaving Co: Ltd. & Ors. AIR 1954 SC 119: 1954 SCR 674;
Mahant Moti Das v. S.P. Sahi, The Special Officer in charge 8
of Hindu Religious Trust & Ors. AIR 1959 SC 942: 1959
Suppl. SCR 503; Hamdard Dawakhana & Anr. v. Union of
India & Ors. AIR 1960 SC 554:1960 SCR 671 - relied on.
ii. INTERFERENCE BY COURT WITH EXPERT BODY'S
::>PINION: C
Undoubtedly, the Court lacks expertise especially in
:tisputes relating to policies of pure academic
~ducational matters. Therefore, generally it should abide
>y the opinion of the Expert Body. Normally the courts o
;hould be slow to interfere with the opinions expressed
JY the experts. It would normally be wise and safe for the
::ourts to leave such decisions to experts who are more
~arriiliar with the problems they face tlian the courts
tienerally can be. [para 27] [1157-B-C] E
The University of Mysore & Anr. v. G.D. Govinda Rao &
4.nr. AIR 1965 SC 491: 1964 SCR 576; Km. Nee/ima Misra
1. Dr. Harinder Kaur Painta/ & Ors. AIR 1990 SC 1402: 1990
2) SCR 84; The Secretary & Curator, Victoria Memorial Hall
'· Howrah Ganatantrik Nagrik Samity & Ors. AIR 2010 SC F
1285: 2010 (3) SCR 190; Dr. Basavaiah v. Dr. H.L. Ramesh
Sc Ors. (2010) 8 SCC 372: 2010 (9) SCR 227; State of H.P.
g. Ors. v. H.P. Nizi Vyavsayik Prishikshan Kendra Sangh
:2011) 6 sec 597 - relied on.
G
II. WHAT CANNOT BE DONE DIRECTLY-CANNOT BE
)ONE INDIRECTLY:
It is a settled proposition of law that what cannot be
Jone directly, is not permissible to be done obliquely,
H
1110 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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 a/iquid
prohibetur, prohibetur at omne per quod devenitur ad
il/ud." An authority cannot be permitted to evade a law by
s "shift or contrivance". [Para 28) [1151-F]
Jagir Singh v. Ranbir Singh AIR 1979 SC 381: 1979 (2)
SCR 282; M. C. Mehta v. Kamal Nath & Ors. AIR 2000 SC
1997: 2000 (1) Suppl. SCR 389; Sant Lal Gupta & Ors. v.
C Modem Co-operative Group Housing Society Ltd. & Ors. JT
2010 (11) SC 273 - relied on.
VII. CONDITIONAL LEGISLATION:
As the legislature cannot carry out each and every
0 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
E 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
F extended to "repealing or altering in essential particulars
of laws which are already in force in the area in
question". The legislature while delegating such powers
has to specify that on certain data or facts being found
and ascertained by an executive authority, the operation
G 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
H task of subordinate ·legislation necessary for
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1111
SUNDER & ORS.
implementing the purpose and object of the Act. Where A
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 B
provisions of the particular Act with which the Court has
to deal including its preamble. 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, c
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
0
already come into force, such a power cannot be
exercised just to nullify its commencemen·t thereof.
[Paras 29, 30, 34] [1151-H; 1152-A-G; 1154-C-D]
re: Article 143, Constitution of India and Delhi Laws Act
(1912) etc., AIR 1951 SC 332: 1951 SCR 747; The Municipal E
Corporation of Delhi v. Bir/a Cotton; Spinning and Weaving
Mills, Delhi & Anr. AIR 1968 SC 1232: 1968 SCR
251 ;Rajnarain Singh v. Chairman, Patna Administration
Committee, Patna & Anr. AIR 1954 SC 569: 1955 SCR 290;
Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore F
v. Corporation of the City of Bangalore by its Commissioner,
Bangalore City AIR 1962 SC 1263: 1961 SCR 698;
Hamdard Dawakhana v. Union of India AIR 1960 SC 554:
1960 SCR 671; Basant Kumar Sarkar & Ors. v. The Eagle
Rolling Mills Ltd. & Ors. AIR 1964 SC 1260: 1964 SCR 913 G
- relied on.
VIII. LEGISLATIVE ARBITRARINESS:
Whenever there is arbitrariness in State action,
whether it be of the legislature or of the executive, Article H
1112 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 14 immediately springs into action and strikes down
such State action. [Para 35] [1154-E-F]
Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. AIR
1981 SC 487: 1981 (2) SCR 79; £.P. Royappa v. State of
Tamil Nadu & Anr. AIR 1974 SC 555: 1974 (2) SCR 348;
8
Smt. Meneka Gandhi v. Union of India & Anr. AIR 1978 SC
597: 1978 (2) SCR 621; Mis. Sharma Transport rep. by D.P.
Sharma v. Government of A.P. & Ors. AIR 2002 SC 322: 2001
(5) Suppl. SCR 390; Bombay Dyeing & Manufacturing Co.
Ltd. (3) v. Bombay Environmental Action Group & Ors. AIR
C 2006 SC 1489: 2006 (2) SCR 920; Bidhannagar (Salt Lake)
Welfare Assn. v. Central Valuation Board & Ors. AIR 2007
SC 2276: 2007 (7) SCR 430; Grand Kakatiya Sheraton Hotel
and Towers Employees and Workers Union v. Srinivasa
Resorts Limited & Ors. AIR 2009 SC 2337: 2009 (3 ) SCR
D 668 - relied on.
IX. AMENDING ACT-IF STRUCK DOWN-WHETHER OLD
LAW WILL REVIVE:
When the statute is amended, the process of
E substitution of statutory provisions consists of two
parts:- the old rule is made cease to exist; and 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
F provision. There is another limb of this legal proposition,
that is, where the Amendment 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-Ill of the
G 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. In case the
Amending Act is struck down by the court for want of
H legislative competence or is violative of any of the,
-sTATE OF TAMIL NADU & ORS. v. K. SHYAM 1113
SUNDER & ORS.
fundamental rights enshrined in Part Ill of the A
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. B
[Paras 40, 42, 43, 45) [1155-G-H; 1156-A-B-F; 1157-8-C-F-
G]
Bhagat Ram Sharma v. Union of India & Ors. AIR 1988
SC 740: 1988 SCR 1034; State of Rajasthan v. Mangilal
Pindwal AIR 1996 SC 2181: 1996 (3) Suppl. SCR 98; C
Koteswar Vitta/ Karnath v. K. Rangappa Baliga & Co. AIR 1969
SC 504: 1969 (3) SCR 40; Firm A. T.B. Mehtab Majid and
Co. v. State of Madras & Anr. AIR 1963 SC 928: 1963 Suppl.
SCR 435; State of Uttar Pradesh & Ors. v. Hirendra Pal Singh
& Ors. (2011) 5 SCC 305: 2010 (15) SCR 854; Ameer-un- D
Nissa Begum v. Mahboob Begum & Ors. AIR 1955 SC 352;
B.N. Tewari v. Union of India & Ors. AIR 1965 SC 1430: 1965
SCR 421; India Tobacco Co. Ltd. v. CTO, Bhavanipore & Ors.
AIR 1975 SC 155: 1975 (2) SCR 612; Indian Express
Newspapers (Bombay) Private Ltd. & Ors. v. Union of India E
& Ors. AIR 1986 SC 515: 1985 (2) SCR 287; West UP.
Sugar Mills Assn. v. State of UP. AIR 2002 SC 948: 2002
(1) SCR 897; Zile Singh v. State of Haryana & Ors. (2004) 8
SCC 1: 2003 (4) Suppl. SCR 1104; State of Kera/a v.
Peoples Union for Civil Liberties, Kera/a State Unit & Ors. F
(2009) 8 SCC 46: 2008 (12) SCR 1141; Harbi/as Rai Bansal
v. State of Punjab & Anr. AIR 1996 SC 857: 1995 (6) Suppl.
SCR 178 - relied on.
X. WHETHER LEGISLATURE CAN OVERRULE THE
JUDGMENT OF THE COURT: G
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 H
1114 SUPREME COURT REPORTS [2011] 11 S.C.R.
A mention such an objection. The rights embodied in a
judgment could not be taken away by the legislature
indirectly. The legislature cannot by bare declaration,
without anything more, directly overrule, reverse or
override a judicial decision. However it can, in exercise
s of the plenary powers conferred upon it by Articles 245
and 246 of the Constitution, render a judicial decision
ineffective by enacting a valid law fundamentally altering
or changing the conditions on which such a decision is
based. A judicial pronouncement of a competent court
c 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
0 ultra vires and unconstitutional. [Paras 49-51] [1159-F-H;
1160-A-D]
Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough
Municipality & Ors. AIR 1970 SC 192: 1970 (1) SCR 388 -
Followed. ·
E S.R. Bhagwat & Ors. v. State of Mysore AIR 1996 SC
18.8: 1995 (3) Suppl. SCR 545; Re, Cauvery Water Disputes
Tribunal AIR 1992 SC 522: 1991 (2) Suppl. SCR 497; G.C.
Kanungo v. State of Orissa AIR 1995 $.G-1655: 1995 (1)
Suppl. SCR 510; Madan Mohan Pathak & Anr. v. Union of
F India & Ors. AIR 1978 SC 803: 1978 (3) SCR 334; K.
Sankaran Nair (Dead) through LRs. v. Devaki Amma Malathy
Amma & Ors. (1996) 11SCC428: 1995 (4) Suppl. SCR 493;
A. Manjula Bhashini & Ors. v. Managing Director, Andhra
Pradesh Women's Cooperative Finance Corporation Ltd. &
G Am: (2009) 8 sec 431: 2009 (1 O) SCR 634 - relied on.
XI. READING OF THE STATEMENT OF OBJECTS AND
REASONS: WHILE INTERPRETING THE STATUTORY
PROVISIONS:
1-i The Statement of Objects and Reasons appended to
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1115
SUNDER & ORS.
the Bill is not admissible as an aid to the construction of A
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 of any B
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 by enactment of the
particular Act or even for judging the reasonableness of c
the classifications made by such Act. [Paras 52, 54]
[1160-F; 1161-E]
Kavalappara Kottarathil Kochuni @ Moopil Nayar v. The
States of Madras and Kera/a & Ors. AIR 1960 SC 1080: Tata
Power Company Ltd. v. Reliance Energy Ltd. & Ors. (2009) D
16 sec 659: 2009 (9) SCR 625 - relied on.
CASE ON MERITS.
3. In the instant case, as the Expert Committee had
E
submitted a report and most of the members had given
their opinion on different issues, 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 had expressed a different opinion on different F
issues/subjects. The counter affidavits were filed before
the High Court by the Secretary to the Government
Education Department labeling the Act 2010 as illegal,
irrational and unconstitutional. [Paras 56, 57] [1161-H;
1162-A-B] G
3.2. Section 18 of the Act 2010 enables the State
Government to remove difficulties, if any, in
implementation of the said Act. Therefore, the
amendment itself was totally unwarranted. If the State H
1116 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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 was reflected in the pleadings that
B indicated an undesirable inclusion of certain chapters
that did not subserve the purpose of a uniform standard
and multicultural educational pattern. The contention was
that such material may damagingly divert the mind of the
young students towards a motivated attempt of
c individualistic glorification. In the opinion of the court, if
such material did create any adverse impact or was
otherwise targeted towards unwanted propaganda
without any contribution towards the educational
standard sought to be achieved, then such material upon
a thorough investigation and deliberation by the Expert
0
Committee could be deleted with the aid of Section 18 of
the Act 2010. The State Government whtle introducing the
Amendment Act 2011 did not appropriately focus
attention on the provision of Section 18 that was
inclusive of all powers that may be required t() r~rhove
E 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
F only this the said provision was not even pointed out by
the State machinery before the High Court nor did its legal
infantry chose to examine the same. The High Court while
dealing with the validity of the provisions of the Act 2010,
had already conceded liberty to the State Government to
G remove defects and had on the other hand, struck down
the offending provisions in Section 14 thereof
empowering the State Government t.o compel the
Education Board to be bound on questions of policy.
Thus, the State Government was left with sufficient
H powers to deal with the nature of defects appropriately
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1117
SUNDER & ORS.
under the said judgment with a statutory power available A
for that purpose under Section 18 of the Act 2010.
Statement of Objects and Reasons given to the
Amendment Act 2011 revealed a very sorry state of affairs
and pointed out towards the intention of the legislature
not to enforce the Act 2010 at all. A perusal of Clause 9 B
showed the Government intended to introduce a more
appropriate system to ensure the improvement of quality
education, meaning thereby, that the State had no
intention to enforce the uniform education system as
provided under the Act 2010. [Paras 60-61] [1169-G; 1165- c
A-H; 1162-A-C-E]
4. 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 D
2011-2012, the validity of this law was upheld by the High
Court byjudgment and order dated 30.4.2010 and by this
Court by order dated 10.9.2010. Certain directions were
issued by the High Court which could be carried out
easily by the State exercising its administrative powers E
without resorting to any legislative function. By the
Amendment Act, even the application of Act 2010, so far
as Standards I and VI were concerned, was also
withdrawn without realising that students who have
studied in academic year 2010-11 would have difficulty F
in the next higher class if they were 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. The Amendment Act G
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, which tantamounts to repealing of
the Act 2010, as unfettered and uncanalised power has
·been bestowed upon the Government to notify the 1-1
1118 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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.
B However, no such liberty was available to the State so far
as Standards I and VI were concerned. [Paras 64-65)
(1167 -G-H; 1168-A-E]
5. After the new Government was sworn in on
16.5.2011, tenders were invited to publish books being
C 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,
o 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 revealed that tenders were invited on 21.5.2011 for
E publishing the text books, taught under the old system
even prior to Cabinet meeting dated 22.5.2011. Thus, a
decision was already taken not to implement the
Common Education System. If one crore twenty lacs
students are Row to revert back to the multiple syllabus
F with the syllabus and textbooks applicable prior to 2010
after the academic term of 2011-12 has begun, they would
be utterly confused and would be put to enormous
stress. Students c3nnot be put to so much strain and
stress unnecessarily. The entire exercise by the
Government is therefore arbitrary, discriminatory and
G oppressive to students, teachers and parents. The State
Government should have acted bearing in mind that
"destiny of a nation rests with its youth". Personality of
a child is developed at the time of basic education during
his formative years of life. Their career should not be left
H in dolorific conditions with uncertainty to such a great
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1119
SUNDER & ORS.
extent. The younger generation has to compete in global A
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 B
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 Advocate General to the High
Court that the Act 2010 would be implemented in the c
academic year 2012-13, cannot be a good reason to hold
the Act 2011 valid. [Paras 66-67) [1168-F-H; 1169-A-F]
6. 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 D
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 E
peculiar circumstances and passed certain orders in this
regard also. The legislature could not wash off the effect
of those judgments at all. [Para 68) [1169-G-H; 1170-A]
A.K. Roy v. Union of India & Anr. AIR 1982 SC 710: 1982
(2) SCR 272; Aeltemesh Rein v. Union of India & Ors. AIR F
1988 SC 1768: 1988 (2) Suppl. SCR 223; Union of India v.
Shree Gajanan Maharaj Sansthan (2002) 5 SCC 44: 2002
(3) SCR 600; Common Cause v. Union of India & Ors. AIR
2003 SC 4493: 2003 (4) Suppl. SCR 471 - Distinguished.
G
7. 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
by order dated 10.9.2010. Thus, the conclusion reached
H
1120 SUPREME COURT REPORTS [2011] 11 S.C.R.
A by the High Court in this regard is upheld. [Para 69) [1170-
D]
The summary of the conclusions are:
(i) The Act 2010 was enacted to enforce the uniform
B 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.
c (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
D 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
E 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 by judgment and order dated 30.4.2010. The
F said judgment of the High Court was duly approved
by a speaking order of this Court dated 10.9.2010.
Certain directions had been given in the said
judgment by the High Court which could have been
complied with by issuing executive directions.
G 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
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1121
SUNDER & ORS.
remove any difficulty to enforce the statutory A
provisions of the Act 201 O. 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.
B
(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.
c
(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 D
representations were made by the societies/
organisations who had earlier challenged the validity
of the Act 2010 and _IJlet their. waterloo in the
hierarchy of the courts~- such representations were,
in fact, not even maintainable and, thus could not E
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 F
pre-determined political decision to scrap the Act
2010. The Cabinet on 22.5.2011 had taken a decision
to do away with the Act 2010 and brought the
Ordinance for that purpose.
G
(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. H
1122 SUPREME COURT REPORTS [2011] 11 S.C.R.
A (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
B 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
c 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.
D
(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
E 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
F view of her stand taken before the High Court that
the Act 2010 was unconstitutional and illegal.
(xii) The Secretary, to the Govt. of Tamil Nadu School
Education Department, who had been entrusted the
responsibility to plead on behalf of the State, herself
G had approved the textbooks and fixed the prices for
those books of Standards Vlllth, IXth and Xth vide
G.O. dated 9.5.2011.
(xiii) The members of the Expert Committee did not
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1123
SUNDER & ORS.
reject the text books and syllabus in toto, however, A
pointed out certain discrepancies therein and asked
for rectification/improvements of the same.
(Kiv) The High Court as well as this Court upheld the
validity of the Act 2010. Thus, it was not permissible B
for the legislature to annul the effect of the said
judgments by the Amendment Act 2011, particularl"-
so far as the 1st and Vlth .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 C
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, D
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,
E
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 F
Nadu on 24.2.2011 called for private publishers to
come out with the textbooks based on common
education system, and submit for clearance by the
Department by 5.4.2011, as taken note of by the High
Court in its order dated 10.6.2011. Thus, in such a G
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
H
1124 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B
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
c 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
D 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
E
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
F 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
G School Education Department and many students
downloaded the same and started study of the same
as the students, parents and teachers had be~n
µnder the impression that for Standards II to V and
VII to X, common education system would definitely
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1125
SUNDER & ORS.
be implemented from academic year 2011-12. Such A
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. B
(xxlii) 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. C
(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. D
(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. [Para .70] (1170-D-H; 1171-A-H; 1172-A-H;
E
1173-A-H; 1174-A-H; 1175-E]
Case Law Reference:
1992 (3) SCR 658 relied on Para 7
1993 (1) SCR 594 relied on Para 7 F
2002 (3) Suppl. SCR 587 relied on Para 7
347 U.S. 483 (1954) .
referred to Para 7
163 U.S. 537 (1896)' r~ferred to Para 7 G
2002 (5) Suppl. SCR 515 relied on Para 7
(2011) 3 sec 436 relied on Para 8
AIR 1987 SC 2034 relied on Para 8
H
1126 SUPREME COURT REPORTS (2011] 11 S.C.R
A AIR 2003 SC 2562 relied on Para16
AIR 2006 SC 1846 relied on Para 17
AIR 2004 SC 3800 relied on Para 18
AIR 2002 SC 685 relied on Para 18
B
AIR 1999 SC 2468 relied on Para 19
AIR 1980 SC 319 relied on Para 21
1954 SCR 1 relied on Para -22
c
1978 (1) SCR 338 relied on Para 22
1985 (2) SCR 579 relied on Para 22
2003 (2) SCR 139 relied on Para 22
D 2009 (11) SCR 142 relied on Para 22
1959 Suppl. SCR 8 relied on Para 23
1978 (1) SCR 338 relied on Para 24
E 1955 SCR 613 relied on Para 25,43
1963 Suppl. SCR 912 relied on Paras 25, 43
1954 SCR 674 relied on Para 26
1959 Suppl. SCR 503 relied on Para 26
F
1960 SCR 671 relied on Para 26
1964 SCR 576 relied on Para 27
1990 (2) SCR 84 relied on Para 27
G 2010 (3) SCR 190 relied on Para 27
2010 (9) SCR 227 relied on Para 27
(2011) 6 sec 597 relied on Para 27
H 1979 (2) SCR 282 relied on Para 28
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1127
SUNDER & ORS.
2000 (1) Suppl. SCR 389 relied on Para 28 A
JT 2010 (11) SC 273 relied on Para 28
1951 SCR 747 relied on Paras 29,30,31
1968 SCR 251 relied on Para 30
B
1955 SCR 290 relied on Para 32
1961 SCR 698 relied on Para 32
1960 SCR 671 relied on Para 32
1964 SCR 913
/
relied on Para 33
c
1981 (2) SCR 79 relied on Para 35
1974 (2) SCR 348 relied on Para 35
1978 (2) SCR 621 relied on Para35 D
2001 (5) Suppl. SCR 390 relied on Para 36
2006 (2) SCR 920 relied on Para 37
2007 (7) SCR 430 relied on Para 38 E
2009 (3) SCR 668 relied on Para 38
1988 SCR 1034 relied on Para 39
1996 (3) Suppl. SCR 98 relied on Para 40
F
1969 (3) SCR 40 relied on Para 40
1963 Suppl. SCR 435 relied on Paras 41,42
2010 (15) SCR 854 relied on Para 42
AIR 1955 SC 352 relied on Para 42. G
1965 SGR 421 relied on Para 42
1975 (2) SCR 612 relied on Para.42
. 1985 (2) SCR 287 relied on Para 42 H
1128 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 2002 (1) SCR 897 relied on Para 42
2003 (4) Suppl. SCR 1104 relied on Para 42
2008 (12) SCR 1141 relied on Para 42
1995 (6) Suppl. SCR 178 relied on Para 44
B
1970 (1) SCR'388 Followed Para 46
1995 (3) Suppl. SCR 545 relied on Para 47
1991 (2) Suppl. SCR 497 relied on Para 48
c 1995 (1) Suppl. SCR 510 relied on Para 48
1978 (3) SCR 334 relied on Para 49
1995 (4) Suppl. SCR 493 relied on Para 49
D 2009 (10) SCR 634 relied on Paras 50,
53
AIR 1960 SC 1080 relied on Para 52
2009 (9) SCR 625 relied on Para 52
E
1982 (2) SCR 272 Distinguished Para 68
1988 (2) Suppl. SCR 223 Distinguished Para 68
2002 (3) SCR 600 Distinguished Para 68
F 2003 (4) Suppl. SCR 471 Distinguished Para 68
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6015-6027 of 2011.
From the Judgment & Order dated 18.7.2011 of the High
G Court of Judicature at Madras in W.P. No. 12882, 12890,
13019, 13037, 13038, 13227, 13293, 13296, 13345, 13381,
13390, 13547 and 6143 of 2011.
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1129
SUNDER & ORS.
A. Navaneetha Krishnan, AG, TN, Guru Krishna Kumar, A. A
Sethuraman, AAG, TN. P.P. Rao, C.A. Sundaram and Dr.
Rajeev Dhawan, Subramonium Prasad, Anesh Paul, Apeksha
Saran, Shweta Mohta, Akshat Hansaria, Utsav Sidhu; V.P.
Sengottuvel, S. Ravi Shankar, Rohini Musa, Yogesh
Kotemmath, Zafar lnayat G. Umapathy, Sudha Umapathy, P.V. B
Yogeswaran, Debmalya Banerjee, Manik Karanjwala (for
Karanjawala & Co.) for the Appellants.
T.R. Andhyarujina, M.N, Krishnamani, R. Viduthalai, Dhruv
Mehta, Basava Prabhu S. Patil and A.TM. Ranga Ramanujam,
T. Harish Kumar, S. Beno Bencigar, Sameer, Sri Ram Krishna, C
B. Vinodh Kanna, S. Prabu Rama Subramanian, Sabarish
Subramanian, Suresh Sakthi Murugan S.J. Aristole, Ankolekar
Gurudatta, S. Ashok Kumar, Gouri Karuna Das Mohanti, Anu
Gupta, Sanjeev Kumar Sharma, G. Sivabalamurugan, Anis
Mohd., L.K. Pandey, Prakhar Sharma, S. Nanda Kumar, Satish D
Kumar, Anjali Chauhan, Parivesh Kumar Singh, R. Satish
Kumar, V.N. Raghupathy, Prashant Bhushan, P.B. Suresh
Babu, S. Gowthaman, S.R. Setia, M. Yogesh Kanna and
Himmat Singh Shergill for the Respondents.
E
The Judgment of the Court was delivered by
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,
F
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 G
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. H
1130 SUPREME COURT REPORTS [2011] 11 S.C.R.
A The Contempt Petitions have been filed for non-implementing
the directions given by this Court vide order dated 14.6.2011.
2. FACTS:
A. In the State of Tamil Nadu, there had been different
B 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
C 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.
D
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 f.-4.2010 providing for free and compulsory
E 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
F 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
G 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.
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1131
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
C. The Cabinet of the State of Tamil Nadu took a decision A
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 B
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 C
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); D
and it also enabled the State Government to issue directions
on policy matters to the Board from time to time which would
be binding on the Board (Section°14).
D. Section 3 of the Act 2010 provided that the Act would E
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 F
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 G
as may be specified by the Board. The Board approved the
curriculum and textbooks for Standards I and VI on 22.3.201 O
and the books were printed in view of the consequential order
dated 31.3.2010 by the Tamil Nadu Textbook Corporation.
H
1132 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
8 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
C 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
D 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
E 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
F the High Court duly approved by this Court, the State Authorities
referred the enumerated components of the curriculum in
respect of Classes II to V and VII to X to an Expert Committee
for its opinion. The curriculum and syllabus prepared for uniform
system of school education as well as the textbooks for
G 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
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1133
SUNDER & ORS. [DR. S.S. CHAUHAN, J.]
16.5.2011. After completing the formalities, the Government A
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 B
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. c
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 Sench of the High Court vide order
dated 10.6.2011 stayed the operation of the Amendment Act D
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 E
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 F
matters stood disposed of vide judgment and order dated
14.6.2011 by which this Court modified the said interim order
inter-a/ia, 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 G
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-
H -
1134 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
8
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
C to commence classes, and complete distribution of textbooks
on or before 22.7.2011.
Hence, these appeals.
RIVAL SUBMISSSIONS:
D 3. Shri P.P. Rao, Shri C.A. Sundaram, Dr. Rajeev
Dhavan, Dr. Abhishek M. Singlwi, Sr. Advocates, Shri A.
Navaneetha Krishnan, learned Advocate General and Shri Guru
Krisfma~umar, learned Additional Advocate General for the
State of Tamil Nadu, appearing for the appellants, have
E submitted that the High Court vide its earlier 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
F 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
G 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
H Court committed an error holding that the Amendment Act 2011
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1135
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
tantamounts to repealing the Act 2010. The High Court itself A
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 B
National Curriculum Framework 2005 (hereinafter called NCF
2005) 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 c
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 D
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 7 Government shall develop a
framework on national curriculum with the help of Academic
Authority specified under Section 29 thereof, the NCF 2005 E
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 F
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 G
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 H
1136 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 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 vario~s
s 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
c 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.
D Krishnamani and Shri Ravi Verma Kumar, Sr. Advocates and
Shri Prashant 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.
E 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
F 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
G 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
H taken away the effect of the judgments of the High Court dated
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1137
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
30.4.2010 and of this Court dated 10.9.2010, wherein it had A
been held that for Standards I & VI, the Act 2010 will be
implemented from academic year 2010-11 and for others from
the 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 B
2011. The mandate of the statute that for Standards II to V and
VII to X, the Act 201 Owill 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 c
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 D
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.
E
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 F
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 G
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 H
1138 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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
C learned counsel for the parties and perused the record.
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
D 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
regommendation of Central Advisory Boarct.of Education and
anidea was mooted by the Government to-prepare textbooks
E 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
F 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
G 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 Nadu, there has been a
demand from the public at large to bring about a common
education system for all children.
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1139
SUNDER & ORS. [DR. S.S. CHAUHAN, J.]
In the year 2006, in view of the struggle and campaign and A
constant public pressure, the Committee under the
Chairmanship of Dr. S. Muthukumaran, former Vice-Chancellor
of Bharathidas~n University was appointed which
recommended to introduce a common education system after
abolishing the four different Boards then in existence in the 8
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.
c
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 Kamataka & Ors., AIR 1992 SC 1858; Unni D
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 Kamataka &.Ors., (2002) 8 SCC 481).
There has been a campaign that right to education under E
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
F
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 G
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
H
1140 SUPREME COURT REPORTS [2011] 11 S.C.R.
A of equalit>.
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
8 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 uniform civil code as it may help
in diminishing opportunities to those who foment fanatic and
fissiparous tendencies.
c
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
D
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
E 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)
F
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
G 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:
H
STATE OF TAMIL NADU & ORS. v. K'. SHYAM 1141
SUNDER & ORS. [DR. S.S. CHAUHAN, J.]
• .... Democracy depends for its very life on a high A
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 8
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 c
were ultra vires and un1,;onstitutional, 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. D
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." E
(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
F
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
section or by introducing a schedule to the Act, indicate
that the syllabus is restricted to curricular subjects and all G
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. H
1142 SUPREME COURT REPORTS [2011] 11 S.C.R.
A (iii) The schools shall follbw 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
B 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 implemer;ited for Standards I and VI from academic
c 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.
D 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 convertedJo Act 2011 passed on
7.6.2011 with retrospective effect i:e.
22.5.2011, the date on
E 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.
F 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;
G'
(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
H (iii) We hereby direct the State to appoint a Committee,
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1143
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
which it had already undertaken to appoint primarily to A
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.
B
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 C
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 D
examining the validity of the amended provisions took note of
settled legal propositions as under:
"As there ls no challenge to the Amending Act on the
ground of legislative incompetence, we are not required E
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 F
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 G
of India." (Emphasis added)
14. The High Court after examining the validity of the
Amended Act held:
H
1144 SUPREME COURT REPORTS [2011] 11 S.C.R.
A (I) The Committee so constituted may not be justified ip
submitting the report stating that the entire uniform system
of education be scrapped and the text books already
provided for be discarded.
(II) The Expert Committee has mis-directed itself as it
8
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.
c
(Ill) 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
D certain ~hanges 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'V.tith the
direction issued earlier on 30.4.2010. This direction was
E
issued to enable the schools to choose frqm 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
F Amending Act to postpone an enactment which has
already come into force. As there is 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
G 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.
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1145
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
(VII) The State has sought to achieve indirectly what could A
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 8
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.
c
(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 D
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
7
legal issues:-
I. CHANGE OF POLICY WITH THE CHANGE OF E
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 F
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 G
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 Kamataka & Anr. v. All India Manufacturers
Organisation & Ors., AIR 2006 SC 1846, this Court examined
under what circumstances the government should revoke a H
1146 SUPREME COURT REPORTS [2011] 11 S.C.R.
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 Government should not
be changed with the change of the government. The Court
B 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"
c has under the Constitution. When the State's acts of
omission' or commission are tainted with extreme
arbitrariness and with ma/a fides, it is certainly subject to
interference by the Constitutional Courts." (Emphasis
added).
D
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 0$C 3800; and State of Haryana
v. State of Punjab & Anr., AIR 2002 SC 685. In the former, this
E 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:
F
" ......... 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
G on the unfinished job rather than putting a stop to the
same."
19. In M./. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu
& Ors., AIR 1999 SC 2468, while dealing with a similar issue,
H this Court held that Mahapalika being a continuing body can
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1147
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
be estopped from changing its stand in a given case, but A
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
8
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 C
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 D
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
E
consideration, whether good or bad 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. F
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 G
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 otller hand, if
the legislature lacks competence, the question of motive does
not arrive at all. Therefore, whether a statute is constitutional H
1148 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
8
the score of ma/a tides."
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.
c
[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;
0 Welfare Assocn. A.R.P., Maharashtra & Anr. v. Ranjit P. Gohil
& Ors., AIR 2003 SC 1266; and State of Kera/a & Anr. v.
Peoples Union for Civil Liberties, Kera/a State Unit & Ors.,
(2009) 8 sec 46].
Ill. LAWS CONTRAVENING ARTICLE 13(2):
E
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
F State from making any law which takes away or abridges the
rights conferred by Part-Ill 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
G 1959 SC 648, this Court held:
.,
"There is a clear distincti~n 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
H provisions of Part Ill; whereas! no post-Constitution law can
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1149
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
be made contravening the provisions of Part Ill, and A
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 B
unambiguous terms that no State shall make any law
which takes away or abridges the rights conferred by Part
Ill, 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 c
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 D
Art. 13(2) posits the suNival 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 E
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 F
the State's power to make law; the law made in spite of
the prohibition is a still bom law. "
(Emphasis added)
(See also: Mohd. Shaukat Hussain Khan v. State of A.P. G
AIR 1974 SC 1480).
25. In Behram Khurshid Pesikaka v. State of Bombay AIR
1955 SC 123; and Mahendra Lal Jaini v. State of Uttar
H
1150 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Pradesh & Ors. AIR 1963 SC 1019, this Court held that in case
a statute violates any of the fundamental rights enshrined in Part
Ill 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
B 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
C 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:
D
26. However, in order to test the constitutional validity of
the Act, where it is alleged that the statute violates the
fundamental rights, itjs necessary to ascertain its true nature
and character and tfie impact of the Act. Thus, courts may
E examine with some strictness the substance of the legislation
and for that purpose, the court has to look behind the form and
appearance thereof to discover the true character and nature
of the legislation. Its purport and intent have to be determined.
In order to do so it is permissible in law to take into
F 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
G 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).
H V. INTERFERENCE BY COURT WITH EXPERT BODY'S
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1151
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
OPINION: A
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 Courf in The
University of Mysore & Anr. v. G.D. Govinda Rao & Anr., AIR B
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 C
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. D
v. H.P. Nizi Vyavsayik Prishikshan Kendra Sangh, (2011) 6
sec 597.
VI. WHAT CANNOT BE DONE DIRECTLY-CANNOT BE
DONE INDIRECTLY:
E
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 F
quod devenitur ad il/ud." 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 Lal Gupta & Ors. v.
Modern Co-operative Group Housing Society Ltd. & Ors., JT G
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 H
1152 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 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
B within the framework of the statute. The principle on which the
power of the legislature is tci 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
C 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
D specify that on certain data or facts being found and
ascertained by an executive authority, the operation of the Act
can be extended to certain areas or 111ay be brought into force
on such determination which is described as conditional
,,, legislation. While doing so, the legislature must retain in its own
E 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
F 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
G v. Bir/a 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:
H Delhi Laws Act (supra) observing as under:
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1153
SUNDER & ORS. [DR. S.S. CHAUHAN, J.]
"In our opinion, the majority view was that an ex~cutive A
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 B
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 C
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 D
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 E
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 of extension of Employees State Insurance Act, i.e. F
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 G
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
H
1154 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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,
C 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 force, such
D a power cannot be exercised just to nullify its commencement
thereof.
VIII. LEGISLATIVE ARBITRARINESS:
35. In Ajay Hasia & Ors. v. Khalid Mujib Sehravardi &
E 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
F 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).
G 36. In Mis. 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
H manner, as fixed or done capriciously or at pleasure without
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1155
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
adequate determining principle, not founded in the nature of A
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
B
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 C
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 D
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
7
unreasonableness
in the statute itself.
IX. AMENDING ACT-IF STRUCK DOWN-WHETHER OLD E
LAW WILL REVIVE:
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 F
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 G
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;
H
1156 SUPREME COURT REPORTS [2011) 11 S.C.R.
A (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 Karnath v. K.Rangappa
B 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
c 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 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
0 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
E 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.
F 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
G 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;
H State of Kera/a v. Peoples Union for Civil Liberties, Kera/a
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1157
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
State Unit & Ors., (2009) 8 SCC 46; and Firm A. T.B. Mehtab A
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
B
of the Constitution or being violative of fundamental· rights
enshrined in Part-Ill 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: C
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 D
the Constitution. The Court further directed as under:
"We declare the abovesaid provision of the amendment
as constitutionally invalid and as a consequence iestore
the original provisions of the Act which were operating E
before coming into force of the Amendment Act."
(Emphasis added)
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 F
rights enshrined in Part Ill 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. G
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 & H
1158 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 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
B
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 the
c decision of the Court shall not bind for that it tantamo!Jnts
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
D decision could not have been given in the altered
circumstances ..... "
47. In S.R. Bhagwat & Ors. v. State of Mysore, AIR 1996
a
SC 188, similar issue was consid~red by this Court while
E 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
F 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
G 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
H be covered by such an enactment having retrospective effect.
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1159
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
48. While deciding the said case, this Court placed A
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, B
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 c
functioning as an appellate court OJ 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."
D
49. In Madan Mohan Pathak & Anr. v. Union of India &
Ors., AIR 1978 SC 803, a seven-Judge Bench of this Court
considered a 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 cari E
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 F
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. G
A similar view has been reiterated in K. Sankaran Nair
(Dead) through LRs. v. Devaki Amma Malathy Amma & Ors.,
(1996) 11 sec 428.
50. The legislature cannot by bare declaration, without H
1160 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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 ineffective by enacting a valid law
fundamentally altering or changing the conditions on which such
B a decision is based.
(Vide: A. Manjufa Bhashini & Ors. v. Managing Director,
Andhra Pradesh Women's Cooperative Finance Corporation
Ltd. & Anr., (2009) a sec 431).
C 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
D 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
E REASONS: WHILE INTERPRETING THE STATl:ITORY
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
F 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
G 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: Kava/appara Kottarathif Kochuni@ Moopif
Nayar v. The States of Madras and Kera/a & Ors., AIR 1960
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1161
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
SC 1080; and Tata Power Company Ltd. v. Reliance Energy A
Ltd. & Ors., (2009) 16 sec
659).
53. In A. Manjula Bhashini & Ors. (Supra), this Court held
as under:
"The proposition which can be culled out from the B
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, C
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 D
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 E
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 by enactment of the particular Act
or even for judging the reasonableness of the classifications
made by such Act.
F
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 G
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 H
1162 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
8
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:
c "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
D 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 tqjudicial review.
- It is further submitted that the decision taken by the Cabinet I
E 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
F 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
G to ensure the quality of education and welfare of the
students. It is with this intent the present policy is being
formulated ..... .
·111. The State, therefore, proposes to appoint a high
H powered committee consisting of experts in the field to
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1163
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
'
undertake a detailed study of the more appropriate A
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 8
been printed already are substandard and wanting in
quality and if followed, would lead to deterioration of
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 C
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 D
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 E
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 F
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."
G
(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 H
1164 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Constitution:.illy valid by the High Court vide judgment and order
dated 30.4.2010 and by this Court vide judgment and order
dated 10.9.2010, the question that arises for consideration is
as to whether it was permissible for the Secretary of the
Education Department to label the Act as illegal and
B 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 '
C 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
D 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 textgooks under the new syllabus was
because of the wrong policy ...... " (Emphasis added)
E
The report submitted by the Expert Committee, in fact, did
not contain any collective opi_nion. 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
F 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:
G
"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
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1165
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
to them to be necessary or expedient for removing the A
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
8
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 C
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 D
or is otherwise targeted towards unwanted propaganda without
any contribution towards the educational standard sought to be
a~hieved, then such material upon a thorougb 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 E
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 F
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 G
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 H
1166 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 2010, had already conceded liberty to the State Government
to remove defects and had on the other hand struck down the
offending provisions in Section 14 thereof empowering the
State Government to compel the Education Board to be bound
on questions of policy. Thus, the State Government was left with
B 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
C 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:
D " ... the State proposes to appoint a high powered
committee consisting of expe: ts in the field to undertake
a detailed study of the more appropriate system to be
adopted for ensuring the improv~rnent of quality and
education and social justice by providing a level playing
E field to all sections of society ... " (Emphasis added)
The afore3-aid 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
F uniform education system as provided under the Act 2010.
62. The relevant part of Section 3 of the Act 2010 reads
as under:
3(1) Every school in the State shall follow the common
G
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;
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1167
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
(b) in Standards II to V and Standards VII to X from the A
academic year 2011-2012.
(2) Subject to the provisions of s.ub-section (1 ), every
school in the State shall -
(a) follow the norms fixed by the Board for giving instruction B
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
c
under:
"3. Schools to follow common syllabus -
(1) Every school in the State shall follow the common D
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 academit
years for different Standards. · E
(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 F
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)
64. The legislature in its wisdom had enforced the Act G
2010 providing for common sylla~1,1s 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 H
1168 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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
B 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
C 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
D 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
E · 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
F 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
G 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
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1169
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
books, taught under the old system even prior to Cabinet A
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 B
applicable prior to 2010 after the a~ademic 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, C
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 D
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 a're statutory prohibitions
for establishing and administering educational institution without E'
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 201 O F
would be implemented in the academic year 2012-13, cannot
be a good reason to hold the Act 2011 valid.
68. Submissions advanced on behalf of the appellants that
it is within the exclusive domain of the legislature to fix the date G
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 H
1170 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 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.,
B 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
C 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
D 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
E
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.
F (ii) The Act itseff 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.
G
(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.
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1171
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
However, few provisions, particularly, the provisions of A
Sections 11, 12 and 14 were struck down by the High
Court vide judgment and order dated 30.4.2010. The said
judgment of the High Court was duly approved by a
speaking order of this Court dated 10.9.2010. Certain
directions had been given in the said judgment by the High B
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
~~ c
(iv) Section 18 of the Act 201 O 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 D
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 E
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 F
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 G
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 H
1172 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Government on 22.5.2011, i.e. on 21.5.2011, tenders were
invited to publish the books under the old education
system. It shows that there had been a pre-determined
political decision to scrap the Act 2010. The Cabinet on
22.5.2011 had taken a decision to do away with the Act
8 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
c 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
D 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 regar~.·
(x) The interim orders passed by the High Court were
E
challenged before this C'lurt 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
F 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
G 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
H view of her stand taken before the High Court that the Act
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1173
SUNDER & ORS. [DR. B.S. CHAUHAN, J.]
2010 was unconstitutional and illegal. A
{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
8
books of Standards Vlllth, IXth and Xth vide G.O. dated
9.5.2011.
{xiii) The members of the Expert Committee did not r.eject
the text books and syllabus in toto, however, pointed out
certain discrepancies therein and asked for rectification/ C
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 D
Amendment Act 2011, particularly so far as the 1st and Vlth
Standards are concerned. The list of approved textbooks
had been published and made known to all concerned.
Thus, the Act 2010 stood cc>mpletely implemented so far
these Standards were concerned.
E
{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.
F
{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 G
herein, an invalidation Act, rendering a statute nugatory.
{xvii) The School Education Department of Tamil Nadu on
24.2.2011 called for private publishers to come out with
the textbooks based on common education system, and
submit for clearance by the Department by 5.4.2011, as H
1174 SUPREME COURT REPORTS [2011) 11 $.C.R.
A taken note of by the High Court in its order dated
10.6.2011. Thus, in such a fact-situation, it was not
permissible for the State to revert back to the old system
at this advanced stage.
(xviii) Most of the other directions given by the High Court
B
on 30.4.2010, stood complied with. The DTERT had been
appointed as Academic Authority as required under
Section 29 of the Act 2009, vide G.O. dated 27.7.2010.
(xix) The material produced by the respondents before this
c Court reveal that norms had been made known and the
NCF 2005 was also implemented by issuing Tamil Nadu
Curriculum 2009.
(xx) The issue of repugnancy of the Act 2010 with the Act
D 2009 merely remains an academic issue as most of the
discrepancies stood removed. Even if something remains
to be done, it can be cured even now, however, such a
minor issue could not be a good ground for putting the Act
2010 under suspended animation for an indefinite period
on uncertain terms.
E
(xxi) Undoubtedly, there had been a few instances of
portraying the personality by the leader of political party
earlier in power, i.e. personal glorification, self publicity
and promotion of his own cult and philosophy, which could
F build his political image and influence the young students,
particularly, in the books of primary classes. Such
objectionable material, if any, could be deleted, rather than
putting the operation of the Act 2010 in abeyance for
indefinite period.
G
(xxii) As early as in April 2011, textbooks for Xth Standard
were posted in the official website of School Education
Department and many students downloaded the same and
started study of the same as the students, parents and
teachers had been under the impression that for Standards
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM 1175
SUNDER & ORS. [DR. 8.$. CHAUHAN, J.]
/ '
II to V and VII to X, common education system would A
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. B
(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 C
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. D
(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 E
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 F
herein within a period of 10 days from today.
D.G. Appeals dismissed.
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