STATE OF TAMIL NADU & Ors. v. K. SHYAM SUNDER & Ors.

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. E 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 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 SUNDER & ORS. 1101 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. 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 G H 1102 SUPREME COURT REPORTS [2011] 11 S.C.R. A B

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 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 SUNDER & ORS. 1103 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 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. 0 Dismissing the appeals, the Court 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 G H 1104 SUPREME COURT REPORTS [2011] 11 S.C.R. 0 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 to send 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] their children H

1.2. The right to education is a Fundamental Right STATE OF TAMIL NADU & ORS. v. K. SHYAM SUNDER & ORS. 1105 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: C 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 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 SUNDER & ORS. 1107 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 of the legislature to enact that Statute. [Paras 21, 22] [1147-E-H; 1148-A] 0 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: F In order to test the constitutional validity of the Act, where it is alleged that the statute violates the fundamental rights, it is necessary to ascertain its true nature and character and the impact of the Act. Thus, courts may examine with some strictness the substance of the legislation and for that purpose, the court has to look behind the form and appearance thereof to discover the true character and nature of the legislation. Its purport and intent have to be determined. In order to do so it is permissible in law to take into consideration all factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief H which it intended to suppress, the remedy for the disease G STATE OF TAMIL NADU & ORS. v. K. SHYAM SUNDER & ORS. 1109 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. 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, G 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]