- (1.) These appeals have been preferred against the judgment and order dated 18.7.2011 of the High Court of Judicature at Madras in Writ Petition Nos.12882, 12890, 13019, 13037, 13038, 13227, 13293, 13296, 13345, 13381, 13390, 13547 of 2011 and W.P.(M.D.) No.6143/2011 whereby the High Court has struck down Section 3 of The Tamil Nadu Uniform System of School Education (Amendment) Act, 2011 (hereinafter called the Amendment Act 2011) and issued directions to the State Authorities to implement the provisions of The Tamil Nadu Uniform System of School Education Act, 2010 (hereinafter called the Act 2010), i.e. to implement the common syllabus, distribute the textbooks printed under the uniform system of education and commence the classes on or before 22.7.2011. The Contempt Petitions have been filed for non-implementing the directions given by this Court vide order dated 14.6.2011.
(2.) FACTS: A. In the State of Tamil Nadu, there had been different Boards imparting basic education to students upto 10th standard, namely, State Board, Matriculation Board, Oriental Board and Anglo-Indian Board. Each Board had its own syllabus and prescribed different types of textbooks. In order to remove disparity in standard of education under different Boards, the State Government appointed a Committee for suggesting a uniform system of school education. The said Committee submitted its report on 4.7.2007. Then another Committee was appointed to implement suggestions/recommendations made by the said Committee. B. During the intervening period, The Right of Children to Free and Compulsory Education Act, 2009 (hereinafter called the Act 2009), enacted by the Parliament, came into force with effect from 1.4.2010 providing for free and compulsory education to every child of the age of 6 to 14 years in a neighbourhood school till completion of elementary education i.e. upto 8th standard. The Act 2009 provided that curriculum and the evaluation procedure would be laid down by an Academic Authority to be specified by the appropriate State Government, by issuing a notification. The said Academic Authority would lay down curriculum and the evaluation procedure taking into consideration various factors mentioned under Section 29 of the Act 2009. Section 34 of the Act 2009 also provided for the constitution of a State Advisory Council consisting of maximum 15 members. The members would be appointed from amongst persons having knowledge and practical experience in the field of elementary education and child development. The State Advisory Council would advise the State Government on implementation of the provisions of the Act 2009 in an effective manner. C. The Cabinet of the State of Tamil Nadu took a decision on 29.8.2009 that it will implement the uniform system of school education in all schools in the State, form a Common Board by integrating the existing four Boards, and will introduce textbooks providing for the uniform syllabus in Standards I and VI in the academic year 2010-11 and in Standards II to V and VII to X in the academic year 2011-12. In order to give effect to the said Cabinet decision, steps were taken on administrative level and thus, the Tamil Nadu Uniform System of School Education Ordinance, 2009 was issued on 27.11.2009 which was published in the official Gazette on 30.11.2009. The Ordinance was subsequently converted into the Act 2010 on 1.2.2010. The Act 2010 provided for the State Common Board of School Education (hereinafter called the Board); imposition of penalties for wilful contravention of the provisions of the Act or the Rules made thereunder (Section 11); offences by companies in the same regard (Section 12); and it also enabled the State Government to issue directions on policy matters to the Board from time to time which would be binding on the Board (Section 14). D. Section 3 of the Act 2010 provided that the Act would commence: (a) in Standards I & VI from the academic year 2010-11; and (b) in Standards II to V and VII to X from the academic year 2011- 12. Sub-section(2) thereof required every school in the State to follow the norms fixed by the Board for giving instruction in each subject and follow the norms for conducting examination as may be specified by the Board. The Board approved the curriculum and textbooks for Standards I and VI on 22.3.2010 and the books were printed in view of the consequential order dated 31.3.2010 by the Tamil Nadu Textbook Corporation. E. As many as 14 writ petitions were filed in the High Court of Madras challenging the validity of various provisions of the Act 2010. A Division Bench of the High Court vide judgment and order dated 30.4.2010 held that the provisions of Sections 11, 12 and 14 were unconstitutional and struck down the same while the Court issued elaborate directions for implementation of the common syllabus and the textbooks for Standards I and VI by the academic year 2010-11; and for all other Standards by the academic year 2011-12 or until the State makes the norms and the syllabus and prepares the textbooks in advance for the same. Further directions were issued by the Court to the State Government to bring the provisions of the Act 2010 in consonance with the Act 2009 and notify the Academic Authority and the State Advisory Council under the Act 2009. The State was also directed to indicate approved textbooks from which private unaided schools could choose suitable for their schools. The Court further directed the Government to amend the Act to say that the common/uniform syllabus was restricted to five curricular subjects, namely, English, Tamil, Mathematics, Science and Social Science which the schools were bound to follow, but not in respect of the co-curricular subjects. The aforesaid judgment was duly approved by this Court vide order dated 10.9.2010 while dismissing large number of SLPs filed against the same by a speaking order. F. In order to implement the Act 2010 and the judgment of the High Court duly approved by this Court, the State Authorities referred the enumerated components of the curriculum in respect of Classes II to V and VII to X to an Expert Committee for its opinion. The curriculum and syllabus prepared for uniform system of school education as well as the textbooks for Classes II to V and VII to X for uniform system of school education in Government schools and Government aided schools were approved by the Board. G. However, there was a change of State Government following the general elections of the State Assembly, on 16.5.2011. After completing the formalities, the Government amended the Act 2010 by the Amendment Act 2011, by which it substituted Section 3 by a new Section providing that the schools would follow the common syllabus as may be specified by the Board for each subject in Standards I to X from such academic year as may be notified by the Government in the official Gazette. The Government may specify different academic years for different Standards. The amendment also omitted Sections 11, 12 and 14 from the Act 2010 since those Sections had been struck down by the High Court as unconstitutional. H. New academic session was to commence on 1.6.2011 and the Amendment Act 2011 came into force on 7.6.2011. A large number of writ petitions were filed challenging the said amendment. A Division Bench of the High Court vide order dated 10.6.2011 stayed the operation of the Amendment Act 2011, but gave liberty to the State Government to conduct a detailed study of the common syllabus and common textbooks and further clarified that the State Government would be entitled to add, modify, substitute or alter any chapter, paragraph or portion of the textbooks etc. and further permitting the managements of private schools to submit their list of books for approval to the Government. I. The aforesaid interim order passed by the High Court on 10.6.2011 was challenged before this Court and all those matters stood disposed of vide judgment and order dated 14.6.2011 by which this Court modified the said interim order inter-alia, directing constitution of a committee of experts, which the State Government had already undertaken to appoint, to examine ways and means for implementing the uniform education system, common syllabus, and the textbooks which were to be provided for Standards II to V and VII to X under the Act 2010. It requested the High Court to determine if such textbooks and the amended syllabus would be applicable to Standards II to V and VII to X keeping in view the provisions of the amended Act. J. In pursuance of the said order, an Expert Committee was constituted and after having several meetings, a joint report was submitted to the High Court. The High Court after considering the said report, vide judgment and order dated 18.7.2011, found fault with the report of the Expert Committee and struck down Section 3 of Amendment Act 2011 with a direction that the State shall distribute the textbooks printed under the uniform system of education to enable the teachers to commence classes, and complete distribution of textbooks on or before 22.7.2011. Hence, these appeals. RIVAL SUBMISSSIONS:
(3.) Shri P.P. Rao, Shri C.A. Sundaram, Dr. Rajeev Dhavan, Dr. Abhishek M. Singhvi, Sr. Advocates, Shri A. Navaneetha Krishnan, learned Advocate General and Shri Guru Krishna Kumar, learned Additional Advocate General for the State of Tamil Nadu, appearing for the appellants, have submitted that the High Court vide its earlier judgment dated 30.4.2010 had issued directions to the State Government to amend the Act 2010 as certain provisions thereof had to be brought in conformity with the Act 2009 and the State had to constitute the Board and designate the Academic Authority and the State Advisory Council. In view thereof, it was necessary to bring the Amendment Act 2011. Thus, basically it was in consonance and in conformity with the judgment dated 30.4.2010 which has duly been approved by this Court. The High Court in its earlier judgment itself gave liberty to the State to implement the common syllabus and distribute text books under the Act 2010 from academic year 2011-12 or with any future date after the norms were made known by the State Authorities so far as the students of Standards II to V and VII to X are concerned. Therefore, in view of the same, the High Court committed an error holding that the Amendment Act 2011 tantamounts to repealing the Act 2010. The High Court itself has accepted the settled legal proposition that the question of malafide or colourable exercise of power cannot be alleged against the legislature, but still it recorded the finding that the Amendment Act 2011 was a product of arbitrary exercise of power. The authorities had to ensure compliance with the National Curriculum Framework 2005 (hereinafter called NCF 2005) prepared by the National Council of Educational Research and Training (hereinafter called NCERT), which had laid down a large number of guidelines for preparing the syllabus and curriculum for the children. The Government of India issued Notification dated 31.3.2010, published in the Official Gazette of India on 5.4.2010, recognizing the NCERT as the Academic Authority to lay down the curriculum and evaluation procedure for elementary education and to develop a framework on national curriculum. In consequence thereof, a Government Order dated 31.5.2010 was also issued by the Ministry of Human Resources Development to the effect that in view of the statutory provisions of the Act 2009, which provided that the Central Government shall develop a framework on national curriculum with the help of Academic Authority specified under Section 29 thereof, the NCF 2005 would be the NCF till such time as the Central Government requires to develop a new framework. After the order of this Court dated 14.6.2011, the Expert Committee appointed by the State had gone through the syllabus and the text books already printed and after having various meetings, came to the conclusion that the same required thorough revision and therefore, submitted a report that it was not possible to implement the Act 2010 in the academic year 2011-12. The Advocate General of Tamil Nadu had given assurance to the High Court that under all circumstances the Act 2010 will be implemented in the next academic year, i.e. 2012-13. However, the Court did not consider the same at all. It falls within the exclusive domain of the legislature/ Government as to from which date it would enforce a Statute. The court cannot even issue a mandamus to the legislature to bring a particular Act into force. Therefore, the question of striking down the Amendment Act 2011 on the ground that implementation of the Act 2010 to be deferred indefinitely is not in accordance with the settled legal propositions. The State had to appoint various authorities and notify the same as required under various statutes. Once the provision stands amended and the amending provisions are struck down by the Court, the obliterated statutory provisions would not revive automatically unless the provisions of the amending statutes is held to be invalid for want of legislative competence. The appeals deserve to be allowed and the judgment and order of the High Court impugned are liable to be set aside.;