Naraindas Indurkhya Vs. The State of
Madhya Pradesh & Ors [1974] INSC 59 (18 March 1974)
BHAGWATI, P.N.
BHAGWATI, P.N.
RAY, A.N. (CJ) KHANNA, HANS RAJ MATHEW,
KUTTYIL KURIEN ALAGIRISWAMI, A.
CITATION: 1974 AIR 1232 1974 SCR (3) 624 1974
SCC (4) 788
CITATOR INFO :
RF 1976 SC1207 (179) R 1979 SC 888 (3,14,16)
F 1982 SC 33 (21)
ACT:
Madhya Pradesh Prathmik Middle School Tatha
Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyav v istha) Adhiniyan, 1973, S.
4(1) and 4(2)--Whether State Government could prescribe text books in exercise
of executive power--Education Board not expressly empowered to prescribe
books--if could prescribe text books on languages--Distinction between
recommendation and prescription--Whether consultation with Chairman of the
Board would amount to consultation with the Board.
Constitution of India--Art. 14 and
19(1)(g)--If the Act violates Art. 162--Scope of.
HEADNOTE:
By Section 8 of the Madhya Pradesh Madhyarrik
Shiksha Adhiniyam, 1965 the Board of Secondary Education was empowered to
prescribe courses of instruction in such branches of Secondary education as it
may think fit. The Board claimed that the power to prescribe courses of
instruction carried with it by necessary implication the power to prescribe
text books, and did prescribe text books on languages. This Act was replaced by
the Madhya Pradesh Prathmik Middle School Tatha Madhyamik Shiksha (Pathya
Pustakon Sambandhi Vyavastha) Adhiniyam, 1973. Section 4(1) empowered the State
Government to prescribe text books according to syllabi laid down under s. 3.
The proviso to sub-section (1) enacted that the text books for secondary
education shall not be prescribed without prior consultation with the Board.
Sub-section (2) of this section stated that the text books prescribed by the
State Government or the Board and 'in force' immediately before the appointed
day shall, till they are changed in accordance with the provisions of this Act,
be the text-books prescribed for the purpose of sub-section (1). Sub-section
(3) prohibited the use of any books, other than the text books prescribed under
subsection (1) or referred to in sub-section (2) in any approved school or
recognised school from the appointed day, that is, 23rd March, 1973. In
exercise of the powers conferred by section 4(1) the State Government issued a
notification dated 24th May, 73 giving its approval to certain text-books for
the Higher Secondary School Certificate Examination in which it was stated that
the approval of these text books was given by the State Government in
consultation with the Board of Secondary Education. A notification was issued
by the Board on 28th March, 1973 giving directions that the scheme of
examination for the higher secondary school certificate examination 1976 shall
continue as per the same examination in 1975 and that except for the language
subjects the text-books recommended or prescribed by the Board for higher
secondary school certificate examination 1975 in respect of other subjects
shall be the recommended or prescribed text-books for the same examination for
the year 1976.
The petitioner carried on business in
printing, publishing and selling text-books for use in schools in the State.
The petitioner was one of the publishers who registered himself with the Board
and submitted text-books published by him for the approval of the Board. From
among the books received for approval the Board recommended certain text-books
but none of the text-books prescribed or recommended by the Board was text book
printed and published by the petitioner.
In a petition under article 32 of the
Constitution it was contended (1) that before the 1973 Act the State Government
had no statutory authority to prescribe any textbooks and, therefore, the
text-books published by the Text Book Corporation and prescribed by the State
Government could not be said to be validly prescribed and they could not be
regarded as text-books 'in force' immediately before the appointed day under s.
4(2) of the Act, (2) that there was no statutory provision empowering the Board
to Prescribe any text-books on languages and the notification prescribing the
text-books was ineffective because it was issued 625 by the Board and not by
the State Government which alone could prescribe the text-books under s. 4(1);
(3) that the text-books recommended by the Board could not be regarded as
text-books 'in force' immediately before the appointed day under s. 4(2) and
the notification dated 28th March, 1973 issued by the Board did not have the
effect of prescribing any of these text-books (4) that though the notification
dated 24th May, 1973 stated that the approval to the textbooks was accorded by
the State Government in consultation with the Board, there was' in fact, no
prior consultation as required by the proviso to sub-section (1) of section 4
and the notification was, therefore, void, and (5) that section 4 imposed
unreasonable restrictions on the petitioner's right to carry on his business in
as much as it did not provide adequate machinery for selection of text books
and left it to the unfittered and unguided discretion of the State Government
and so was violative of article 14 and 19(1)(g) of the Constitution.
HELD: The text-books printed and published by
the Text-books Corporation were validly and lawfully prescribed by the State
Government in exercise of its executive power and they were 'in force'
immediately before the appointed day. These text-books accordingly fall within
the category of prescribed text-books under s. 4(2)and s. 4(3) of the Act. The
action of the State Government in prescribing the text-books, printed and
published by the Text Book Corporation, to the exclusion of other text-books on
the subjects did not infringe any right of the petitioner and other publishers
and-it was within the executive power of the State. The State Government could
act in exercise of executive power in relation to any matter with respect to
which the State legislature had power to make laws even if there was no
legislation to support executive action; but such executive action must not
infringe rights of any person. The fact that prior to 1973 there was no
statutory provision like s.4(1) of the 1973 Act which empowered the State
Government to prescribe any text books did not-mean that the State Government
was not entitled to prescribes these books in exercise of its executive power
under article 162 of the Constitution.[638-D; B-C;
636 G] Rai Sahib Ram Jawaya Kapur v. State of
Punjab, 119551 2 S.C.R. 225 followed.
Bennett Cokman & Co. v. Union of India
[1972] 2 S.C.R. 788, State of Madhya Pradesh v. Thakur Bharat Singh, [1967] 2
S.C.R. 454 referred to.
(2) The Board has undoubtedly the power to
prescribe courses of instruction in languages, but it does not include, as
necessarily incidental to it, the power to prescribe textbooks on languages. It
is not correct to say that the course of instruction in language cannot be laid
down except by reference to text books prescribed for the purpose. The
prescription of text books on languages was outside the power of the Board and
hence it was ultra vires and had no binding effect which would oblige the
schools to use only those text books and no others. it is only the State
Government and not the Board which is given power under s. 4(1) to prescribe
text books and therefore, the notification dated 28th March, 1973 which was
issued by the Board and not by the State Government was futile and ineffectual
and did not have the effect of prescribing these text books under s. 4(1). The
Board is a creature of the statute and unless the statute creating it invests
it with power to prescribe textbooks so as to make it obligatory on the schools
to adopt such text books and no other for study and teaching, it cannot claim
to exercise such power. The Board also, cannot in the absence of power
expressly or by necessary implication conferred on it by the statute. make it a
condition of recognition of schools that they shall follow only the text books
prescribed by it and no other text books shall be used by them for study and
teaching. The Act of 1965 under which the Board was created did not in express
terms give power to the Board to prescribe text books, nor did it provide
anywhere that the Board shall be entitled to make it a condition of recognition
that the schools shall use the text books prescribed by it and no others. [639
B; 640 B-D; 638 E-G] (3) The notification dated 28th March, 1973 cannot be read
as representing exercise of power under s. 4(1) and the status of prescribed
text books could not be accorded to the four text books on the strength of this
notification. [641 B] There is a basic distinction between recommendation and
prescription of tex books. Prescription of a text book carries with it a
binding obligation to follow the text book. There is no such obligation when a
book is merely recommended.
626 No conferment of statutory power is
needed to enable the Board to recommend text books and no question of ultra
vires can arise in such a case. The text books were merely recommended and not
prescribed by the Board and being only recommended text books, they obviously
could not be said to be 'in force' immediately before the appointed day.
Section 4(2) did not, therefore, apply in respect of these text books. [640
E-H] (4) The notification dated 24th May, 1973 must be held to be invalid as
being in breach of the mandatory requirement of the proviso to section 4(1) of
the Act. It is clear beyond doubt that there was no prior consultation with the
Board before the State Government issued the notification. The proviso to
section 4(1) clearly lays down a condition for the exercise of power and unless
this condition is satisfied the power cannot be exercised by the State
Government. It is settled law that where the validity of an order depends on
the fulfilment of a condition precedent and there is a recital in the order
that the condition precedent is satisfied, the presumption arises in favour of
the satisfaction of the condition precedent and the burden is on the person
challenging the satisfaction of the condition precedent to prove that in fact
the condition precedent was not satisfied. In the instant case the question as
to what text books should be recommended to the State Government for
prescription was not placed before the general meeting of the Board, nor was
any resolution passed by the general meeting of the Board recommending any text
books. The recommendations in regard to the text books were made by the
Chairman of the Board, which were not made as an emergency measure nor was any
power of the Board vested in the Chairman by the regulations. There is nothing
in the Act or the regulations which says that consultation with the Chairman
would be tantamount to consultation with the Board.
The consultation which Government had before
issuing the notification dated 24th May, 1973 was consultation with the
Chairman and not with the Board. [644 E; 641F] Swadeshi Cotton Mills v. The
State of U. P. [1962] 1. S.C.R.
422. referred to.
(5) No fundamental right guaranteed to the
petitioner under article 19(1)(g) was infringed, if the State Government, in
exercise of the statutory power conferred under s. 4(1), did not prescribe text
books printed and published by them. It is not possible to say that arbitrary
and uncontrolled power has been veste in the State Government and on that
account Section 4(1) is bad. The power to select and prescribe text books is
not an unguided and unfettered power which leaves it free to the State
Government to select and prescribe such text books as it may wantonly or
capriciously please, but it is a power which is confined and embanked within
limits by the object and purpose for which it is conferred. The State
Government has to exercise this power in the light of the policy or principle
that the best possible text books should be made available to the students.
[648A; 649 D,B] It is true that the power conferred on the State Government is
a large, discretionary power and no machinery is laid down by the legislature
which would ensure just and proper execution of the power by the State
Government, but on that account alone conferment of the power connot be held to
be invalid. Whenever a discretionary power is conferred on any authority there
is always a potential danger of its exercise or abuse, however much the
legislature may try to hedge it with safeguards. But the mere possibility that
the power may be misused or abused cannot per se induce the court to deny the
existence of the power. The State legislature has confided this power not to
any petty official but to the State Government and that itself is a guarantee
that the power would be exercised in conformity with the policy or principle
laid down in the statute. [649G] Matajob Dobea v. R. C. Bhari, [1955] 2 S.C.R.
925.
ORIGINAL JURISDICTION : Writ Petition No.
1177 of 1973 (Under Article 32 of the Constitution for enforcement of the
fundamental rights).
627 B. Sen with K. P. Munshi, U. K. Khaitan
and S. R. Agarwala, for the petitioner.
Y. S. Dharmadhi Kari with Ram Punjwani and.
I.N. Sharff.
for the respondent 1-3 (In W. P. 1177) V. N.
Ganpule and Urmila Sirur for the respondent 4-6 (in W.
P. 1177) The Judgment of the Court was
delivered by BHAGWATI, J.-The petitioner carries on business of printing,
publishing and selling text books for use in Primary, Middle schools and Higher
Secondary classes in schools in the State of Madhya Pradesh. On 1st November,
1956, as a result of the reorganisation of States under the States
Reorganization Act, 1956, a new State of Madhya Pradesh was formed comprising
of territories of the existing States of Madhya Pradesh known as Mahakoshal area,
the territories of the existing State of Madhya Bharat, excluding Sunel Tappa,
Sironj SubDivision of Kotah District in the existing State of Rajasthan and the
territories of the existing States of Bhopal and Vindhya Pradesh. We are
concerned in this petition mainly with Mahakoshal and Madhya Bharat regions of
the State of Madhya Pradesh and we shall, therefore, so far as any references
to the position obtaining prior to the reorganization of the States is
concerned, confine our attention only to those two regions. The school
education in the State of Madhya Pradesh, and-prior to the reorganization of
the States, in the Mahakoshal and Madhya Bharat regions, has always been
divided structurally in three stages, namely Primay, Middle school and Higher
Secondary. Primay education consists of classes I to V, Middle School, of
classes VI to VIll and Higher Secondary of classes IX to XI. Primary and Middle
school education may be considered together, for barring a short period upto
the enactment of the Madhya Pradesh Secondary Education Act, 1959 (hereinafter
referred to as the Act of 1959), when Middle school education was clubbed
together with Higher Secondary education and was treated differently from
Primary education, Middle school education has always been treated on the same
basis as Primary education in contrast to Higher Secondary Education. it is not
necessary for the purpose of the present petition to trace the history of the
regulation of Primary and Middle school education from the inception, It would be
sufficient to state that Primary education at all times and Middle school
education, so far as Mahakoshal region is concerned, after the enactment of the
Act of 1959, and in other regions even before that time, were regulated by the
State Government. The State Government prescribed the courses of instruction
and syllabi for all classes of Primary and Middle school education and they
were followed not only by Government schools but also by private schools, not
because of any statutory authority, but because most of the private schools
depended on grant-in-aid from the State Government and unless the courses of
instruction and syllabi prescribed by 628 the State Government were followed by
them, they would not be recognized by the Board of Secondary Education so as to
be able to present their students for the examination to be held by the Board a
sine qua non for admission to a university-unless their Primary and Middle
schools sections were recognized by the State Government. So far as the text
books for use in Primary and Middle school classes were concerned, the State
Government prescribed 29 text books printed and published by it on different
subjects for use in different classes. There was of-course, no statutory
provision under which these 29 text books could be prescribed by the State
Government and the prescription of these 29 text books had, therefore, no
statutory authority but private schools, no less than Government schools,
accepted these 29 text books because non-acceptance would have involved estoppage
of grant-in-aid from the State Government. In the meantime a Society called the
Madhya Pradesh Pathya Pustak Rachna Avam Shaikshinik Anusandhan Nigam
(hereinafter referred to as the Text Books Corporation) was formed by the State
Government for the purpose of carrying on the work of printing, publishing and
distributing text books for use in the Primary and Middle school classes in the
State of Madhya Pradesh. The Minister in-charge of the portfolio of education
was an ex-officio, Chairman of the text Books Corporation, while some officers
of the Government connected with the Education Department were ex-officio
members along with certain other nonofficial members nominated by the State
Government. The Text Books Corporation was registered under the Madhya Pradesh
Societies Act, 1959 and according to the provisions of that Act, it was to
function on a no profit-no loss basis. The initial resources of the Text Books
Corporation were provided by the State Government by giving a loan of Rs. 15
lacs for the purpose Of enabling it to commence its operations. The Text Books
Corporation was by its very constitution controlled by the State Government and
it was intended to function as an agency of the State Government.
The work of printing and publishing of text
books was, however not commenced immediately by the Text Books Corporation and
until the end of the academic year 1970-71, the aforesaid 29 text books printed
and published by the State Government continued to be prescribed and used in
the Primary and Middle school classes.
There was, however, a change in the course of
instruction and syllabi in some of the subjects from the academic year 1971-72.
The State ,Government by a notification dated 18th May, 1971 prescribed
improved courses of instruction and syallabi in certain subjects to be followed
from the academic year 1971-72 and directed that so far as courses ,of
instruction and syallabi in the other subjects were concerned, they should
continue to be the same as in the previous academic year 1970-71. The aforesaid
29 text books printed and published by the State Government, not being in
accordance with the new courses of instruction and syallabi so prescribed, were
rendered useless and in their place,.
new text books had to be brought out which
would be in conformity with such new courses of instruction and syallabi. The
Text Books Corporation accordingly printed and published 28 text books in
accordance with the new courses of instruction and syallabi and these 629 28
text books were prescribed by the State Government by a notification dated 21st
May, 1971 for use in the Primary and Middle school classes for the academic
year 1971-72. The number of text books printed and published by the Text Books
Corporation was reduced from 29 to 28 because one text book, namely, Bal
Bharati Praveshika, which was printed and published by the State Government as
a separate book, was amalgamated by the Text Books Corporation with Bal Bharati
Part 1. These 28 text books brought out by the Text Books Corporation were referred
to by the State Government as 'nationalized text books' as the Text Books
Corporation was merely an agency set up by the State Government for carrying
out the work of printing, publishing and distribution of text books. The State
Government made it clear in the notification dated 21st May, 1971 that so far
as the other subjects were concerned for which such nationalised' text books
were not available, the schools were free to use according to their convenience
such books of private publishers as they liked, provided they were written in
accordance with the courses of instruction and syllabi for the academic year
1970-71. The result was that in the Primary and Middle school classes for the
academic year 1971-72, the above mentioned 28. text books, printed and
published by the Text Books Corporation. were used exclusively as text books
for the subjects dealt with by them. while for the other subjects text books
printed and published by private publishers were used according to the
convenience of the schools. The courses of instruction and syallabi for the
next academic year 1972-73 were prescribed by the State Government by a
notification dated 10th May' 1972 and by this notification the State Government
introduced new courses of instruction and syallabi in certain subjects and with
regard to the rest, directed that the same courses of instruction and syallabi
as also the same text books shall continue to be in use as in the academic year
1971-72. The same 28 text books, printed and published by the Text Books
Corporation, revised in accordance with the new courses of instruction and
syallabi where necessary continued to be prescribed as text books for the
academic year 1972-73. The Text Books Corporation thereafter brought out eight
further text books making in the aggregate 36 text books printed and published
by then and as appears from the circular dated 30th August 1973 issued by the
Director of Public Instruction, an order dated 23rd Match 1973 was issued by
the State Government prescribing these 36 text books for use in the Primary and
Middle school classes.
This order had not been' challenged in the
present petition or in the voluminous affidavits filed on behalf of the parties
and it need not therefore engage our attention. The learned counsel appearing
on behalf of the petitioner did make an attempt in the course of the argument
to challenge the validity of this order but when we pointed out to him that
there was no challenge against it in the petition and it was, therefore, not
open to him to assail its validity on the petition as it stood he rightly
withdrew his attack.
This, of-course', does not mean that the
petitioner cannot challenge the validity of this order in any other appropriate
proceeding which he may take for that purpose, provided he has valid grounds
for doing so.
So far as Higher Secondary education is
concerned, it was regulated by the Madhya Pradesh Education Act, 1951 in the
Mahakoshal region 630 and by the Madhya Bharat Secondary Education Act, Samvat
2007 in the Madhya Bharat region. It is not necessary to refer to the
provisions of these two statutes, for both of them were repealed by the Act of
1959 which was enacted by the Legislature of the new State of Madhya Pradesh
after the reorganization of that State. Section 3 of that Act provided for the
incorporation of the Board of Secondary Education and s. 4 laid down its
composition. The powers of the Board were set out in s. 8, which provided inter
alia that the Board shall have the power to prescribe courses of instruction in
such branches of Secondary Education as it may think fit. Sections 18 and 19
constituted a salient and distinguishing feature of this Act. They were based
on the recommendations made by the Secondary Education Commission, 1952-53 set
up by the Government of India. The Secondary Education Commission suggested in
its report that it was necessary that "all political and other extraneous
influence must be eschewed in the selection of taxt books" for use in
Higher Secondary classes and this was possible only if a high power committee
was entrusted with this task. What should be the constitution of this high
power committee and what functions must be assigned to it also formed the
subject matter ,of recommendations made by the Secondary Education Commission.
These recommendations formed the basis for the enactment of ss. 18 and 19.
Section 18 provided for the constitution of a committee called the Text Books
Committee which was to consist of distinguished independent persons who would
be free from political and other extraneous influences and they included inter
alia a sitting or retired Judge of the High Court or a District Judge, a member
of the State Public Service Commission, a Vice-Chancellor of a university in
the State and two leading educationists. The functions of the Text Books
Committee were difined by s. 19 to be as follows "(1) to select text books
for prescribed courses of instructions and syllabi for Secondary Education;
(2) to prepare a panel of expert reviewers
for each of the subjects included in the secondary school education curriculum;
(3) to appoint expert committees consisting
of not more than three members from amongst the panel of experts to examine and
submit a detailed report on the suitability of the books referred to them;
(4) to invite experts to write text books and
other books of study, if necessary,--" Though one of the functions
entrusted to the Text Books Committee was to select text books for prescribed
courses of instruction and syllabi, no power was given to the Board to prescribe
the text books selected by the Text Books Committee. The Board, however,
claimed to have the power to prescribe text books in languages on the ground
that the power to prescribe courses of instruction and syllabi in languages
carried with it by necessary implication the power to prescribe text books and
on that view, the Board, on the basis of the selections made by the Text Books
Committee, prescribed text books in English, Hindi, Marathi and Sanskrit.
631 The Madhya Pradesh Madhyamik Shiksha
Adhiniyam 1965 (hereinafter referred to as the Act of 1965) was enacted by the
Madhya Pradesh Legislature on 29th September 1965 and by s.
30, it repealed the Act of 1959. Section 3 of
that Act provided for the incorporation of the Board of Secondary Education and
its constitution was laid down in s. 4.
Section 8 defined the powers of the Board
which included inter alia the power:
"(a) to prescribe couses of instruction
in such branches of Secondary Education as it may think fit;
(in) to advise the State Government as to the
courses of instruction and syllabi of Middle School Education with a view to
secure coordination between Middle School and Secondary Education;
The last quoted cl.(m) of s. 8 clearly
postulated that the State Government has the power to prescribe courses of
instruction and syllabi for Middle School classes. Section 24 empowered the
Board to constitute various committees which included inter alia Committees of
Courses and their constitution, powers and duties were to be provided by regulations
made by the Board under s. 28. The Board in exercise of the power conferred under
s. 28 made the Board of Secondary Education, Madhya Pradesh Regulations, 1965
(hereinafter referred to as the Regulations).Regulation 30 provided that the
Board shall appoint Committees of Courses in the subject enumerated in that
regulation and each Committee of Courses was enjoined by regulation 32 to
"lay down a syllabus in the subject or subjects with which it is
concerned,, and recommend suitable text books when called upon to do so".
It was not stated in the Regulations as to who could call upon the appropriate
Committee of Courses to recommend suitable text books but obviously what was
contemplated was that the Board would require the appropriate Committee of Courses
to make recommendations in regard to text books. Now, the Board was not given
the power to prescribe text books, and therefore, the recommendation of
suitable text books invited from the appropriate Committee of Courses could
only be for the purpose of enabling the Board in its turn to recommend such
text books for use by schools in the Higher Secondary classes. In fact, the
Board did not claim to exercise the power to prescribe text books on any
subjects other than languages. The Board prescribed text books only on
languages and so far as the other subjects were concerned, the Board merely
recommended text books on some of those subjects.
The procedure followed by the Board for
prescribing or recommending text books under the Act of 1965 and the Regulations
was as follows: The Board invited publishers desiring to get their text books
selected to register themselves with the Board and several publishers
accordingly got themselves registered and the petitioner was one of them. The
detailed instructions and specifications in regard to the text books 632 on
matters such as quality of paper, number of pages, price etc. were laid down by
the Board and the registered publishers were invited to submit text books
prepared in accordance with such instructions and specifications for selection
by the Board. The registered publishers than got the text books written by
authors of their choice in conformity with the prescribed courses of
instruction and syllabi and printed in accordance with the instructions and
specifications given by the Board and submitted such text books to the Board
for selection. The text books which were received from the registered
publishers were then sent to three reviewers appointed by the Board for the
relevant subject for evaluation after removing the title page, the names of the
author and the publisher and every other matter that might indicate the
identity of the author or the publisher. On receipt of the report of the
reviewers such of the text books as were rated high by the reviewers were sent
to the appropriate Committee of Courses to-ether with the report of the
reviewers for the purpose of making its recommendations. The appropriate
Committee of Courses after scrutinising the text books and considering the
evaluation made by the reviewers made its recommendation to the Board as
regards the merits of the text books submitted for its consideration. The Chair
man of the Board then, by virtue of the authority conferred upon him by the
Resolution of the Board dated 12th October, 1971, selected the text books after
considering the report of the reviewers and the recommendation of the
appropriate Committee of Courses and the text books so selected were prescribed
or recommended, as the case may be, by the Board. This procedure gave opportunity
to all the registered publishers to submit their text books for selection by
the Board and provided a machinery for selection of the best text books to be
recommended or prescribed by the Board.
The record before us does not show precisely
what were the language on which text books were prescribed by the Board, but it
does appear from the affidavits and the notification dated 28th March, 1973
issued by the Board, that text books were prescribed by the Board for most of
the languages taught in the primary and middle schools, barring General English
and Tamil for classes IX and X. So far as the text books recommended by the
Board were concerned, there were four notifications issued by the Board from
time to time recommending text books on different subjects for classes IX and X
for the period commencing from the academic year 197273 for the Higher
Secondary School Leaving Certificate Examination, 1975. The first was a
notification dated 5th April, 1972 by which the Board recommended six textbooks
on Civics, the second was a notification dated 25th April, 1972 by which the
Board recommended five text books on Economics, the third was a notification
dated 26th April, 1972 by which the Board recommended eight text books on
Physics and the fourth was a notification dated 17th May, 1972 by which the
Board recommended eight text books on Chemistry. There were thus four subjects
on which text books were recommended by the Board. It was not seriously
disputed on behalf of the petitioner that the procedure set out above 633 for
selection of text books was substantially followed by the Board in prescribing
text books on languages and recommending text books on these four subjects.
None of the text books prescribed or recommended by the Board was a text book
printed and published, by the petitioner. The petitioner had submitted text
books on Civics, Physics and Chemistry. for selection by the Board but they
were rejected by the reviewers as they were found to be below standard and were
printed on poor quality paper and were also costlier than the text books
submitted by other registered publishers.
This was the position which obtained when the
Madhya Pradesh Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya
Pustakon Sambandhi Vyavastha) Adhiniyam, 1973 (hereinafter referred to as the
Act of 1973) was enacted by the Madhya Pradesh Legislature. This Act came into
force on 23rd March, 1973 being the date appointed under sub-s. (3) of s. 1.
The provisions of this Act are material and we may refer to them. Section 2,
cl. (e) defines text book in the widest Possible terms and according to this
definition, it means any book approved by the State Government in accordance
with the syllabi prescribed under the Act for use for any examination conducted
under the authority of the State Government or by the Board or held in an
approved school or a school recognized by the Board and includes other books of
study or instructional material such as maps, designs and other material of
like nature approved by the State Government for any standard of primary
education, middle school education or secondary education in accordance with
the syllabi laid down under the Act. Section 3, sub-s. (1) provides that the
State Government may from time to time in relation to primary education and middle
school education and the Board may from time to time in relation to Secondary
education, lay down syllabi and publish the same in such manner as may be
prescribed and sub-s. (2) of s. 3 says that the syllabi laid down under the
authority of the State Government in the case of primary education and middle
school education and by the Board in the case of secondary education and in
force immediately before the appointed day, i.e., 23rd March, 1973 shall be the
syllabi laid down and published for the purpose of sub-s. (1) of s. 3. Then
comes section 4 which deals with the prescription of text books according to
syllabi laid down under s. 3. Since that is the section which is impugned in
the present petition, we may reproduce it :
"4(1) The State Government may, by
order, prescribe the text books according to syllabi laid down under section 3;
Provided that text books for secondary
education shall not be prescribed without prior consultation with the Board.
(2) The text books prescribed by the State
Government or the Board according to the syllabi referred to in sub-section (2)
of section 3 and in force immediately before the appointed day shall till they
are changed in accordance with the provisions of this Act, be the text books
prescribed for the purpose of subsection, (1).
634 (3) As from the appointed day, no books
other than the text books prescribed under subsection (1) or referred to in
subsection (2) shall be used in any approved school or recognized school for
imparting instructions in accordance with syllabi in primary education, middle
school education or secondary education." The State Government is also
given power under s. 5 to undertake the preparation, printing or distribution
of text books itself or to cause the text books to be prepared, printed or
distributed through such agency as it thinks fit on such terms and conditions
as may be prescribed. Section 6, provides that the text books prescribed by the
State Government for any standard of secondary education shall be text books
prescribed for such standard of secondary education in accordance with the
syllabi and the Board shall be bound to accept the same when so prescribed by
the State Government. Then follows section 7 which deals with delegation of
power and the last is section 8 which confers power on the State Government to
make rules for carrying out all or any of the purposes of the Act. It was
common ground between the parties that no rules have so far been made by the
State Government under this section.
Soon after the coming into force of the Act
of 1973, the Board issued a notification dated 28th March, 1973 which contained
inter alia the following directions
1. The syllabus and scheme of examination for
the Higher Secondary School Certificate Examination 1976 shall continue as per
the Higher Secondary School Certificate Examination, 1975,
2. Leaving aside General English and Tamil
for classes IX and X, so far as the rest of the subjects are concerned, the
text books recommended or prescribed by the Board for the Higher Secondary
School Certificate Examination 1975 shall be the recommended or prescribed text
books for the Higher Secondary School Certificate Examination, 1976.
The State Government thereafter in exercise
of the power conferred under s. 4, sub-s. (1) of the Act of 1973 issued a
notification dated 24th May, 1973 according its approval to certain text books
on Botany, Zoology, History, Element of Commerce and English for the Higher
Secondary School Certificate Examination, 1976. It was recited in the
notification that the approval to these text books was given by the State
Government in consultation with the Board.
The petitioner thereupon filed the present
petition claiming various reliefs under Art. 32 of the Constitution. Several
contentions were raised in the petition which has the great demerit of being a
highly prolix and confused document, not easily yielding to analysis, but it is
not necessary to delve into the petition to find out all the contentions taken
there, since at the hearing the learned counsel for the petitioner confined his
arguments only to the following contentions 635 A. Prior to the enactment of
the Act of 1973 the State Government had no statutory authority to prescribe
any text books for the primary and middle school classes and the notifications
dated 21st May, 1971 and 10th May, 1972 issued by the State Government
prescribing 28 text books printed and published by the Text books Corporation
for use in some of the primary and middle school classes were, therefore,
without the authority of law and these 28 text books could not be said to be
validly prescribed by the State Government nor could they be said to be 'in
force' immediately before the appointed day, and if that be so, they could not
be regarded as text books prescribed under sub-s.
(2) of s. 4.
B. Though text books on languages were
prescribed by the Board, there was no statutory provision empowering the Board
to do so and the prescription of these text books by the Board was, therefore,
without the authority of law and these text books could not be said to be
validly prescribed by the Board or to be 'in force' immediately before the
appointed day so as to qualify for being regarded as text books prescribed
under s. 4, sub-s. (2) The Notification dated 28th March, 1973 undoubtedly provided
that these textbooks shall be prescribed text books for the period commencing
from the academic year 1973-74, but that Notification was ineffective to
prescribe any text books under s. 4, sub-s. (1) because it was issued by the
Board and not by the State Government which alone could prescribe text books
under s. 4, sub-s. (1).
C. The Board by issuing the notifications
dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May, 1972
merely recommended certain text books on Civics, Economics, Physics and
Chemistry. These text books were not prescribed by the Board and they were not
in force' immediately before the appointed day. They could not, therefore, be
regarded as text books prescribed under s. 4, sub-s. (2). Though the notification
dated 28th March, 1973 was issued after the appointed day. it did not have the
effect of prescribing any of these text books under s.
4, sub-s. (1), firstly, because it was issued
by the Board and not by the State Government, and secondly, because it did not
more than merely direct that these text books shall be recommended text books
for the period commencing from the Academic year 1973-74.
D. Though the notification dated 24th May,
1973 recited that the approval to the text books mentioned in the notification
was accorded by the State Government in consultation with the Board, there was
in fact no prior consultation with the Board as required by the proviso to S.
4, sub-s.(1) and the notification prescribing these text books, was therefore,
null and void.
E. Section 4 imposed unreasonable
restrictions on the right of the petitioner to carry on his business of
printing publishing and 636 distributing text books for use in Primary, Middle
School and Higher Secondary Classes, inasmuch as it did not provide a proper
and adequate machinery for selection of the best available text books and left
it to the unguided and unfettered discretion of the State Government to
prescribe at its own sweet will such text books at it liked without providing
any standard or. guidance which would regulate the exercise of such discretion
arid it was, therefore, void as being violative of Art. 19(1)(g) of the
Constitution. This section was also violative of the equality clause contained
in Art. 14 of the Constitution inasmuch as it enabled the State Government to
discriminate between one publisher and another by leaving it to the
unrestrained will of the State Government to prescribe such text books as it
liked without laying down any machinery which would ensure selection of the
best available text books by giving equal opportunity to all publishers.
These were the only contentions urged on
behalf of the petitioner which need to be considered. and we shall now proceed
to examine them.
Re:A.
This contention relates to 28 text books
printed and published by the Text Books Corporation. The State Government
prescribed these 28 text books for use in the primary and middle school classes
at the time when the Act of 1973 had not been enacted and the question is
whether the State Government was entitled to do so. There was, of course, then
no statutory provision, like s. 4, sub-s. (1) of the Act of 1973, which
empowered the State Government to prescribe any text books and the prescription
of these 28 text books had, therefore, no legal force. But that does not mean
that the State Government was not entitled to prescribe these 28 text books in
exercise of its executive power under Art. 162 of the Constitution. 'The
executive power of the State Government under Art. 162 extends to all matters
with respect to which the State Legislature has power to make laws and since
education is a subject which falls within entry I 1 of List II of the Seventh
Schedule to the Constitution, the State Government could apparently in exercise
of its executive power prescribe these 23 text books, provided that in doing so
it did not trench on the rights of any person. It is now well settled by the
decision of this Court in Rai Sahib Ram Jawaya Kapur v.
State of Punjab(1) that the State Government
can act in exercise of executive power in relation to any matter with respect
towhich the State Legislature has power to make laws, even if there is no
legislation to support such executive action, but such executive action must
not infringe the rights of any person. If the executive action taken by the
State Government encroaches on any private rights, it would have to be
supported by legislative authority, for under the rule of law which prevails in
our country every executive action which operates to the prejudice of any
person must have the authority of law to support it. Vide paragraph 27 of the
judgment of this Court in Bennett Coleman & Co. V. Union of India.(2) The
executive action of the State Government in entering upon the business (1)
[1955] 2 S.C.R. 225.
(2) [1972] 2 S.C.C. 788.
637 of printing, publishing and selling text
books in Rai Sahib Ram Jawaya's case (1), though not supported by legislation,
was upheld because it did not operate to the prejudice of any person. This
Court took care to point out that if it were "necessary to encroach upon
private rights in order to enable the Government to carry on their business, a
specific legislation sanctioning such course would have to be passed". The
same view was reiterated by this Court in State of Madhya Pradesh v. Thakur
Bharat Singh(2) where referring to the decision in Rai Sahib Ram Jawava's
case(l) this Court pointed out that in that case it specifically held that
"by the action of the Government no rights of the petitioners were
infringed, since a mere chance or prospect of having particular customers
cannot be said to be a right to property or to any interest or undertaking. It
is clear that the State of Punjab had done no act which infringed a right of
any citizen : the State had merely entered upon a trading venture. By entering
into competition with the citizens, it did not infringe their rights". It
would, therefore, seem that the State Government could prescribe these 28 text
books in exercise of its executive power provided that such action did not infringe
the rights of anyone.
Now, so far as Government schools are
concerned, the State Government could always, as the authority owning and
conducting those schools, prescribe the text books to be used by the students
in those schools. The prescription of such text books by the State Government
would not infringe the rights of any publisher, because, as pointed out by this
Court in Rai Sahib Ram Jawaya's case,(1) there is no right in a publisher that
"any of the books printed and published by him should be prescribed as
text books by the school authorities or if they are once accepted as text books
they cannot be stopped or discontinued in future". With regard to the
private schools also the position is the same. All private schools have to seek
recognition by the State Government for two reasons. Firstly, by reason of
Regulation 61, cl. (b), it is a condition of recognition of a school by the
Board that its primary and middle sections should be recognized by the State
Government and secondly, it is only recognized schools which are eligible for
grant in-aid from the State Government. Both these are highly compelling
reasons. There are hardly any schools which have no Higher Secondary section
and that means they must have recognition by the Board, but this they cannot
have unless they are recognized by the State Government in respect of their
primary and middle sections. Besides, having regard to the high costs of
maintenance in running a school, it is not possible for any school to function
without grant-in-aid from the State Government and in order to qualify for
grantin-aid, the school must be recognized by the State Government. Now, one of
the main conditions on which recognition is granted by the State Government is
that the school authorities must use as text books only those which are
prescribed or authorised by the State Government. Thus, even though there is no
law which confers power on the State Government to prescribe text books, the
State Government can by virtue of the need of the private schools for
recognition. prescribe text books for them (1) [1955] 2 S.C.R. 225.
(2) [1967] 2 S.C.R. 454 638 and oblige them
to use such text book,,. So far, therefore, as the private schools are
concerned, the, choice of text books rests entirely with the State Government.
No publisher has any right to insist that any of his books shall be accepted as
text books by the State Government. He has merely a chance or prospect of any
or some of his books being approved as textbooks by the State Government.
"Such chances are", to use the words of Mukherjee, C.J., in Rai Sahib
Ram Jawaya'5 case,(1) "incidental to all trade and business" and
there can be no infringement of any right, if by an action of the State
Government such chances are taken away. The action of the State Government in
prescribing 28 text books printed and published by the Text Books Corporation.
to the exclusion of other text books on the subject did not therefore infringe
any right of the petitioner and other publishers and it was within the executive
power of the State Government. This view is completely supported by he decision
in Rai Sahib Ram Jawaya's cast:. (1) It must, therefore follow that 28 text
books printed and published by the Text Books Corporation were validly and
lawfully prescribed by the State Government in exercise of its executive power
and they were 'in force immediately before the appointed day, These text books
accordingly fail, within the category of prescribed text books under sub-s.
(2) of s. 4, and under s. 4. subs. (3) the approved
and recognized schools were tinder an obligation to use these text books and no
others so far as they related to the subjects for which they were prescribed.
RJ: B.
It is elementary that the Board is a creature
of the statute and unless the statute creating it invests it with power to
prescribe text books so as to make it obligatory on the schools to adopt such
text books and no others for study and teaching, it cannot claim to exercise
such power. The Board also cannot, in the absence of power expressly or by
necessary implication conferred on it by the Statute, make it a condition of
recognition of the schools that they shall follow only the text books
prescribed by it and no other text books shall be used by them for study and
teaching.
The Act of 1965 under which the Board is
created does not in express terms give power to the Board to prescribe text
books, nor does it provide anywhere, that the Board shall be entitled to make
it a condition of recognition that the schools shall use the text books
prescribed by it and no others, Even the Regulations made by the Board under s.
28 of the Act of 1965 do not make it a requirement of, recognition that only
the text books prescribed by the Board shall be used by the schools. Vide
Regulation 61. The only question is whether there is anything in the Act of
1965 which by necessary implication confers power on the Board to prescribe
text books. It was not seriously disputed by the learned Advocate General
appearing on behalf of the respondents that the Board has no power to prescribe
text books generally but his contention was that, so far as languages are
concerned, the power to prescribe courses of instruction, which is admittedly
vested in the Board, carries with it by necessary implication the power to
prescribe text books, because (1) [1955] 2 S.C.R. 225.
639 courses of instruction in languages
cannot, be prescribed otherwise than by reference to particular text books
selected for the purpose. it was urged by the learned Advocate General that it
is only through particular selected text books that courses of instruction in
languages can be prescribed, and therefore, the Board has, as necessarily incidental
to its power of prescribing courses of instruction, the power to prescribe text
books on languages. This contention is not well founded and cannot be
sustained. The Board has undoubtedly the power to prescribe courses of
instruction in languages, but it does not include, as necessarily incidental to
it, the power to prescribe text books on languages. it is not correct to gay
that the course of instruction in language cannot be laid down except by
reference to text books prescribed for the purpose. The course of instruction
in language would cover topics such as grammar, composition. prose anti poetry.
So far as grammar and composition are concerned, there can be no doubt that
course of instruction can be laid down without prescribing any text books and
in fact we find from the prospectus issued by the Board from time to time that
no text books were prescribed by the Board and yet the course of instruction
could be laid down with sufficient clarity and precision by reference to
various topics such as nouns, verbs, adverbs, adjectives, tenses, complex
sentences and so on and so forth. The course of instruction in prose and poetry
can be easily prescribed by reference to prose passages, short stories,
articles, essays and poems of different authors and for this purpose it is not
necessary to prescribe any particular text books containing such prose passages,
short stories, articles, essays and poems. In fact, once these prose passages, short
stories, articles, essays and poems are prescribed as part of the course of
instruction, different publishers would come out with different text books
compiling these materials and presenting them in intelligible, instructive and
useful form. These different text books may vary one from the other, in
presentation, style, annotations, comments, elucidations, explanatory notes,
quality of printing, price etc. Some may be more intelligible and useful than
'the others. The chief merit of a text book on prose and poetry would really
lie not in mechanical reproduction of the prose passages, short stories,
articles, essays and poem prescribed by the Board, which can be done by any
publisher, but in the annotations, comments, elucidations and explanatory notes
given by the author with a view to inculcating in the students greater
understanding and keener appreciation of the literary and other qualities of
such prose passages, short stories, articles, essays and poems.
Any one of these text books may be prescribed
by the Board and that would be wholly different from prescribing' the course of
instruction. We may illustrate our point by an example. Take a case where a
play of Shakespeare is to be prescribed. There are several editions of
Shakespearian plays. There is the Cambridge edition; there is the Arden
edition; there is the Warwick edition and there 'are a host of other editions.
The play of Shakespeare can be prescribed by referring to its title, as for
example, Hamlet or King Lear. It is not necessary, in order to prescribe such
play as a part of the course of instruction, that a particular edition of such
play should 640 also be prescribed as a text book. The two are entirely distinct
propositions. The power to prescribe courses of instruction in languages does
not require for its effectual exercise prescription of text books and the power
to prescribe text books cannot be read by necessary implication in the power to
prescribe courses of instruction.
It is therefore, clear, and this conclusion
can be disputed, that the prescription of text books on languages was outside
the power of the Board and hence it was ultra vires and had no binding effect
which would oblige the schools to use only these text books and no others.
These text books could not in the circumstances be said to be prescribed by the
Board, nor could they be said to be in force, immediately before the appointed
day so as to attract the applicability of s.
4, sub-s. (2), and they could not claim the
status of prescribed text books under S. 4, sub-s. (2). These text books could
not also be regarded as text books prescribed under s. 4, sub-s. (1) on the
basis of the notification dated 28th March, 1973. It is only the State
Government and not the Board, which is given power under s. 4, sub-s. (1) to
prescribe text books, and therefore, the notification dated 28th March, 1973,
which was issued by the Board and not by the State Government, was futile and
ineffectual and did not have the effect of prescribing these text books under
s. 4, sub-s. (1). These text books could not, therefore, be regarded as text
books prescribed under sub-s. .(1) or referred to in sub-s. (2) of s. 4 and in
the circumstances there was no obligation on the approved and recognised
schools to use only these text books and no others under sub-s. (3) of s. 4.
Re: C.
This contention is self-evident and does not
need any elaborate argument. It may be noted that there is a basic distinction
between recommendation and prescription of a text book. When a text book is
prescribed by an appropriate authority having legal power to do so, it has to
be followed by the schools. Prescription of a text book carries with it a
binding obligation to follow the text book. There is no such obligation when a
text book is merely recommended.
Recommendation has merely a persuasive effect
it being open to the schools to accept the recommendation or to reject it as
they think fit. The schools may use the recommended text book or they may not
according as the principals choose.
That is why no conferment of statutory power
is needed to enable the Board to recommend text books and no question of ultra
vires can arise in such a case. Now the text books which formed the subject matter
of the notifications dated 5th April, 1972, 25th April, 1972, 26th April, 1972
and 17th May, 1972 were merely recommended and not prescribed by the Board and
being only recommended text books as distinguished from prescribed text books,
they obviously could not be said to be ,in force' immediately before the
appointed day.
Section, 4, sub-s. (2) did not, therefore,
apply in respect of these text books and they could not be regarded as text
books prescribed under s. 4, sub-s. (2). The respondents placed strong reliance
on the notification dated 28th March, 1973 but it is difficult to see how this
notification can be of any help to the respondents. This notification was
admittedly 641 issued by the Board and not by the State Government and moreover
it did not even purport to prescribe these text books but merely directed that
these text books shall be recommended text books for the period commencing from
the academic year 1973-74. It is, therefore, not possible to read this
notification as representing exercise of power under s. 4, sub-s. (1) and the
status of prescribed text books could not be accorded to these text books on
the strength of this notification. These text books could not accordingly be
regarded as prescribed text books either under sub-s. (1) or under sub-s. (2)
of s. 4, and section 4, sub-s. (3) could not be invoked for contending that
these text books alone should be used in the approved and recognised schools to
the exclusion of text books of other publishers.
Re: D.
The validity of the notification dated 24th
May, 1973 was challenged under this head of contention on the ground that the
State Government by this notification prescribed certain text books for the
Higher Secondary classes without prior consultation with the Board and the notification
was, therefore, invalid as being in contravention of the proviso to s. 4,
sub-s. (1). Now, it is clear on a plain reading of S. 4, sub-s. (1) That though
power is conferred on the State Government to prescribe text books for Higher
Secondary classes, this power cannot by reason of the proviso, be exercised by
the State Government without prior consultation with the Board. The proviso
clearly lays down a condition for the exercise of the power and unless this
condition is satisfied the power cannot be exercised by the State Government.
Any attempted exercise of the power without complying with this condition would
be null and void. The question which, therefore, requires to be considered is
whether the State Government issued the notification dated 24th May, 1973 after
prior consultation with the Board. Now there is a recital in the notification
that the approval to the text books mentioned in the notification was given by
the State Government in consultation with the Board. This recital throws the
burden of proving that there was no prior consultation with the Board on the
petitioner. It is settled law that where the validity of an order depends on
the fulfillment of a condition precedent and there is a recital in the order
that the condition precedent is satisfied, the presumption arises in favour of
the satisfaction of the condition precedent-the burden is on the person
challenging the satisfaction of the condition precedent to prove that in fact
the condition precedent was not satisfied. See Swadeshi Cotton Mills v. The
State of U.
P. (1) The petitioner would, therefore, have
to show by producing proper and adequate material that though the notification
recited that the State Government had consulted the Board prior to the issue of
the notification, there was in fact no such prior consultation with the Board.
If the petitioner, can establish this, the notification would have to be held
to be invalid as being in contravention of the proviso to s. 4, sub-s. (1).
Now it is clear from paragraph 134 of the
affidavit filed by Chaturvedi, Deputy Secretary to the Government of Madhya
Pradesh, (1) [1962] 1 S.C.R. 422.
642 Education Department in reply to the
petition' that text books on Botany, Zoology, English, Elements of Commerce,
History. 'and Geography were invited by the Board from the registered
publishers and various registered publishers submitted their text books on one
or more of these subjects for selection and approval by the Board. The
petitioner also availed of this opportunity and submitted text books on History
and Geography. The text books received from the various registered publishers
were then sent to the reviewers for evaluation, there being a different set of
expert reviewers for each subject, and on receipt of the report of the reviewers,
these text books, at any rate most of them chosen in the order of merit given
by the reviewers, were placed before the appropriate Committee of Courses along
with the report of the reviewers. The appropriate Committee of Courses after
scrutinising the text books placed before it and considering the evaluation
made by the reviewers, submitted its recommendations to the Board and the
Chairman of the Board, agreeing with the recommendations made by the
appropriate Committee of Courses, forwarded them to the State Government as
recommendations of the Board. It appears that no recommendations in regard to
text books on Geography were forwarded by the Chairman of the Board to the
State Government as all the text books on Geography submitted for selection and
approval were found to be below the requisite standard. The State Government
then issued the notification dated 24th May, 1973 prescribing text books on
Botany, 'Zoology, English, Elements of Commerce and History in accordance with
the recommendations forwarded by the Chairman of the Board. It will be seen
from these facts that the question as to what text books should be recommended,
to the State Government for prescription was not placed before the general
meeting of the Board, nor was any resolution passed by general meeting of the
Board recommending any particular text books. The recommendations in regard to
the text books were made by the Chairman of the Board. This was indeed not
disputed by the learned Advocate General but his contention was that the
Chairman was entitled to act on behalf of the Board in making recommendations
and the recommendations made by him in regard to text books were in the eye of
the Jaw recommendations of the Board. Now, there can be no doubt that if the
recommendations made by the Chairman could be regarded as recommendations of
the Board, the requirement of the proviso to s. 4, sub-s. (1) would be
satisfied. But we do not think it is possible to take this view. (What the
proviso to s. 4, sub-s. (1) requires is that there should be prior consultation
with the Board, and therefore, it is the Board which must give its opinion and
advice to the State Government in regard to the prescription of text books. Now
the Board may act by resolution passed at general meeting but as pointed out
above, there. was no resolution passed at general meeting of the Board
recommending any text books.
It was the Chairman who recommended the text
books and the question, therefore, is whether the Chairman could exercise the
power of the Board to make recommendations to the State Government so that the
recommendations made by the Chairman could in law be said to be recommendations
of the Board.
The powers and duties of the Chairman are to
be found in s. 15 of the 643 Act of 1965. Sub-s. (1) of s. 15 does not help,
for it merely says that it shall be the duty of the Chairman to see that the
Act and the Regulations are faithfully observed and he shall have all powers
necessary for that purpose. Sub-s. (2) of s. 15 has also no relevance in this
connection. Then there is sub-s. (3) of s. 15 which provides that in any
emergency arising out of the business of the Board, which in the opinion of the
Chairman requires that immediate action should be taken, the Chairman shall
take such action as he deems necessary and shall thereafter report his action
to the Board at its next meeting. This sub-section is clearly inapplicable as
it is not the case of the respondents that there was any emergency arising out
of the business of the Board which necessitated the taking of immediate action
by the Chairman. The recommendation of the text books was not made by the
Chairman as an emergency measure-at any rate that was not the plea taken by the
respondents. Sub-s. (4) of s. 15 is a sort of residuary provision which confers
power on the Chairman to "exercise such other powers as may be vested in
him by Regulations". But there is nothing in the Regulations which, vests
in the Chairman the power of the Board to recommend or give advice in relation
to text books to be prescribed by the State Government. In fact, no power of
the Board is vested in the Chairman by the Regulations. Thus, we do not find
anything in the Act or in the Regulations which provides that the power of the
Board to recommend' or give advice in relation to text books to the State
Government which power is necessarily by implication conferred on the Board
under s. 4, sub-s. (1) provision shall be exercisable by the Chairman so that
consultations with the Chairman would be tantamount to consultation with the Board.
Realising this difficulty, the learned' Advocate General relied on a decision
of the Board dated 12th October, 1971, Ex. 9 to the affidavit in reply filed by
Chaturvedi on behalf of the respondents, and contended that by this decision
'the Board authorised the Chairman to take all necessary steps for the purpose
of proceeding further with the work of the text books improvement scheme which
consisted of selection and approval of text books for the purpose of
prescription or recommendation by-the Board, and the Chairman was, therefore,
entitled to act on behalf' of the Board in recommending or giving advice in
relation to text books to the State Government. Now we do not dispute the
general proposition that when a power or function is given by the statute to. a
corporate body and no provision is made in the statute as to how such power or
function shall be exercised, the corporate body can by a resolution passed at a
general meeting devise its own mode of exercising such power or function, such
'as authorising one or more of the members to exercise it on behalf of the
Board. But here this broad proposition would have no application. There are
several provisions in the Act of 1965 which provide for delegation of the
powers and functions of the Board to the Chairman and other Committees by means
of Regulations. If, therefore, any power or function of the Board is intended
to be made exercisable by the Chairman, that can only be a done through the
mechanism of the Regulations. The Board cannot, by a resolution passed at a,
general meeting, authorise the Chairman to exercise a particular power or
function entrusted to the 644 Board. The decision of the Board dated 12th
October, 1971 cannot, therefore, help the respondents even if it were construed
as authorising the Chairman to exercise the power of the Board to recommend or
give advice in relation to text books to be prescribed by the State Government.
But in fact we do not think it can be so construed. This decision merely
authorises the Chairman to take all necessary steps for the purpose of
proceeding further with the implementation of the text books improvement scheme
and it does not confer any authority on him to exercise a power of the Board
which he other-wise did not possess. In any event the authority conferred by
this ,decision cannot include the exercise of a statutory function which came
to be vested in the Board for the first time on 23rd Match, 1973 when s. 4,
sub-s. (1) was enacted. We are, therefore, compelled to reach the conclusion
that the only consultation which the State Government had before issuing the
notification dated 24th May, 1973 was consultation with the Chairman and not
with the Board. The recommendation of text books by the appropriate Committee
of Courses also could not be regarded as consultation with the Board, because
the power or function to give opinion or advice in relation to text books to be
prescribed by the State Government came to be conferred on the Board for the
first time on the enactment of s. 4. sub-s. (1) and there is no Regulation
which delegates this power or function to the appropriate Committee of Courses.
It is, therefore, clear beyond doubt that there was no prior consultation with
the Boara before the State Government issued the notification, dated 24th May,
1973 and this notification must accordingly be held to be invalid as being in
breach of the mandatory requirement of the proviso to s. 4, sub-s. (1).
Re : E.
The argument of the petitioner under this
head of challenge was that s. 4, sub-s. (1) vested power in the State
Government to prescribe text books for use in schools at primary, middle and
secondary education levels and by reason of s. 4, sub-s. (3) it became
obligatory on the schools to use only the text books so prescribed and no
others for imparting instruction to the students. The effect of the combined
reading of sub-ss. (1) and (3) of s. 4 was that once the text books ,were
prescribed by the State Government under s. 4, sub-s. (1), the schools were
precluded from using any other text books for the purpose of imparting
instruction to the students. This directly interfered with the business of the
petitioner for, if the text books printed and published by the petitioner were
not selected and approved by the State Government, the petitioner would not
have any market for the ,sale of his text books and that would prejudicially
affect his business. The petitioner did not seriously contend that it was not
open to the legislature to provide by legislation for standardisation of the
courses of instruction and syllabi and prescription of text books but his
grievance was that the machinery provided by the legislature for this purpose
was unconstitutional.
The petitioner pointed out that he could have
no grievance if the Legislature provided an independent body of experts like
the Text Book Committee constituted under the 645 Act of 1959, for prescribing
text books. The provision for such independent body would ensure fair and equal
treatment to all printers. and Publishers of text books and eliminate arbitrariness
in the matter of selection of text books for prescription. But here the State
Government was constituted the authority for selection and prescription of'
text books and unfettered and uncanalised power was vested in the, State
Government without any guidelines to control and regulate the: exercise of such
power and without there being anything which would. Ensure proper execution of
the power or operate as a check on the, injustice that might result from
improper execution of the same. The State Government could in exercise of its
absolute and uncontrolled discretion select and prescribe any text books it
liked without consulting any experts on the subject and this might not only
result in wrong. and improper evalutation of the merits of the text books
submitted for the consideration of the State Government but also lead to
arbitrariness and personal as well as political nepotism. The conferment. of
such unguided and uncontrolled power on the State Government in, the matter of
selection and prescription of text books contravened the; fundamental right to
carry on business guaranteed under Art. 19(1) (g) and was also violative of
equality clause contained in Art. 14 and sub-ss.(1)and(3)of s.4
were,therefore,liable to be struck down as invalid.. We do not think this
contention of the petitioner is well founded. It must fail for reasons which we
immediately proceed to give.
One thing is clear that in order to achieve a
uniform standard of excellence in education in all the schools within the
State, it is necessary that there should be uniform courses of instruction
which are. properly thought out and devised by experts on the subject and
forgiving proper and adequate training in such courses, there should be.
standardised text books. That would not only ensure uniformity in standard but
also achieve efficiency in instruction. Moreover, it would prevent us of poor
quality text books which frequently find way in the schools on.
account of certain dubious financial
arrangements, between the management and the printers and publishers of those
text books. It is, therefore, in the interest of proper and healthy education
of children that scientifically planned courses of instruction should be laid
down and text books of high merit and excellence should be prescribed. That can
never be regarded as unreasonable. Now when the Legislature decides to adopt
this course the Legislature must necessarily entrust the text of laying down
courses of instruction and prescribing text books to some authority fifted and
equipped for this purpose., We are concerned here only with prescription of
text books and we: will, therefore, confine our attention to that subject. The
Legislature,. when it enacted the Act of 1959, left the task of selecting and
prescribing text books to be performed by the Text Books Committee but under s.
4, sub-s. (1) of the Act of 1973 the Legislature has provided, that this task
shall be performed by the State Government. Now it can hardly be disputed that
for the purpose of selection and prescription of text books, the machinery of
Text Books Committee would be more efficient and objective, and inspiring of
greater confidence as to, its fairness and impartiality of than that of the
State Government,, 646 but on that account alone the entrustment of the power
of selection and prescription of text books to the State Government cannot be
regarded as bad. The Legislature may choose one of several methods available to
it for achieving its legislative and the Court cannot interfere simply because
it thinks that another method is better and should have been adopted by the
Legislature, for ultimately it is for the Legislature in exercise of its
legislative judgment to determine which of many possible methods it should in the
circumstances adopt. It is a matter of policy for the Legislature to decide to
which authority it would entrust the power to select and prescribe text books
.and so long as the authority chosen by the Legislature is not inappropriate or
inadept for the task, no complaint of unconstitutionality in the law can be
made on the ground that some other authority which appears to be better could
have been chosen by the Legislature. The question which has, therefore, to be
considered in adjudging the constitutionality of s. 4, sub-ss. (1) and (3) is
not whether a better machinery could have been chosen by the Legislature for
selecting and prescribing text books but whether the machinery which is in fact
provided by the Legislature is violative of any of the fundamental rights of
the petitioner.
So far as the claim of the petitioner based
on infraction of the fundamental right under Art. 19(1) (g) is concerned, that
stands completely negatived by the decision in Rai Saheb Ram Jawaya's case.(1)
We have already referred to this decision earlier but in order to appreciate
how it applies in the context of the present claim, it is necessary to notice
the facts of that case in some detail. The procedure which was framed by the
State of Punjab prior to May 1950 for selection and approval of text books for
use in schools was that the State Government used to invite publishers and
authors to submit their books for examination and approval by the Education
Department and the State Government after scrutiny selected out of them a
certain number of text books, any one of them could be used by the schools.
This procedure was slightly altered in May 1950 and under the altered
procedure, the State Government took upon itself the monopoly of publishing
text books in some of the subjects and with regard to the rest, the State
Government selected and approved text books--not several as before but only one
on each subject-out of those submitted by the publishers and authors and
reserved for itself a certain royalty on the sale proceeds of such approved
text books. In 1952, however, changes of a fir more drastic character were
introduced by a notification dated 9th August, 1952 issued by the State
Government. By this notification the State Government took over the publishing,
printing and selling of text books exclusively in its own hands and the private
publishers were altogether ousted from this business. The petitioners who were
a firm carrying on the business of preparing, printing, publishing and selling
text books there--upon moved this Court under Art. 32 of the Constitution
praying for writs of mandamous directing the State Government to withdraw the
notifications of 1950 and 1952 on the ground that they contravened the
fundaments right of the petitioners under Art. 19(1) (g). This Court, however,
took the view that no fundamental right of the petitioners to carry on their
(1) [1955] 2 S. C. R. 225 647 business of preparing,-printing, publishing and
selling text books was infringed by the notifications issued by the State
Government in furtherance of their policy of nationalisation of text books for
students and the petitioners were, therefore, not entitled to any relief under
Art. 32 of the Constitution. Mukherjea, C. J., speaking on behalf of a
unanimous Court, pointed out:
"The procedure hitherto followed was
that the Government used to invite publishers and authors to submit their books
for examination and approval by the Education Department and after selection
was made by the Government, the size, contents as well as the prices of the
books were fixed and it was left to the publishers or authors to print and
publish them and offer them for sale to the pupils.
So long as this system was in vogue the only
right which publishers, like the petitioners had, was to offer their books for
inspection and approval by the Government. They had no right to insist on any
of their books being accepted as text books. So the utmost that could be said
is that there ,was merely a chance or prospect of any or some of their books
being approved as text books by the Government. Such chances are incidental to
all trades and businesses and there is no fundamental right guaranteeing them.
A trader might be lucky in securing a particular market for his goods but if he
loses that field because the particular customers for some reason or other do
not choose to buy goods from him, it is not open to him to say that it was his
fundamental right to have his old customers for ever. On the one hand,
therefore, there was nothing but a chance or prospect which the publishers had
of having their books approved by the Government, on the 'other hand the
Government had the undisputed right to adopt any method of selection they liked
and if they ultimately decided that after approving the text books they would
purchase the copyright in them from the authors and others provided the latter
were willing to transfer the same to the Government on certain terms, we fail
to see what right of the publishers to carry on their trade or business is
affected by it. Nobody is taking away the publishers' right to print and publish
any books they like and to offer them for sale but if they have no right that
their books should be approved as text books by the Government it is immaterial
so far as they are concerned whether the Government approves of text books
submitted by other persons who are willing to sell their copyrights in the
books to them, or choose to engage authors for the purpose of preparing the
text books which they take up on themselves to print and publish The action of
the Government-does not amount to an infraction of the fundamental right
guaranteed by Article 19(1) (g) of the Constitution." These observations
are equally applicable where the State Government instead of prescribing text
books in exercise of its executive power does so in exercise of statutory power
such as that conferred 648 under s.4, sub-s.(1). No fundamental right
guaranteed to the petitioners under Art. 19(1)(g) is infringed if the State
Government in exercise of the statutory power conferred under s. 4, sub-s. (1)
does not prescribe text books printed and published by him. The challenges
based on Art. 19(1) (g) must, therefore, fail.
That takes us to the challenge based on Art.
14 of the Constitution. This Article ensures equality before law and strikes at
arbitrary and discriminatory State action, Where State Government exercises any
power, statutory or otherwise, it must not discriminate unfairly between one
person and another. Every State action must be guided by certain norms and
standards which are in themselves not objectionable as being discriminatory in
character. if power conferred by statute on any authority of the State is
vagrant and unconfined and no standards or principles are laid down by the
statute to guide and control the exercise of such power, the statute would be
violative of the equality clause, because it would permit arbitrary and
capricious exercise of power, which is the anti-thesis of equality before law.
Such a case would fall within the second proposition laid down by this Court in
Jyoti Pershad v. Administrator for the Union Territory of Delhi.
"The enactment of the rule might not in
terms enact a discriminatory rule of law but might enable an unequal or
discriminatory treatment to be accorded to persons or things similarly
situated. This would happen when the legislature vests a discretion in an
authority, be it the Government or an administrative official acting either as
an executive officer or even in a quasijudicial capacity by a legislation which
does not lay down any policy or disclose any tangible or intelligible purpose
thus clothing the authority with unguided and arbitrary powers enabling it to
discriminate.' It can, therefore hardly be disputed that if s. 4, sub-s. (1)
were found to confer a naked and arbitrary power on the State Government to
select and prescribe such text books as it pleases in exercise of its absolute
and uncontrolled discretion without any guiding principle or policy to control
and regulate the exercise of such discretion, it would be in violation of the
constitutional mandate of equality before law. The State Government would then
be able to choose the text book of any publisher it likes and prescribe it as a
text book even though it is inferior in quality than the text book of another
publisher. That would enable the State Government to exercise its power arbirtarily
and capriciously and discriminate at its sweet will between one publisher and
another. But we do not think s. 4, sub-s. (1) Suffers from this lethal
infirmity. It does not vest an arbitrary uncontrolled discretion in the State
Government to select and prescribe such test books as it likes irrespective of
their merit and quality. The object or purpose for which the power to select
and prescribe text books is conferred on the State Government is to ensure
uniformity of standard 649 and excellence in instruction which can be achieved
only if standardised text books of high quality and merit are used in the
schools. This object or purpose furnishes guidance to the State Government in
exercising its power of selecting and prescribing text books. The power to
select and prescribe text books is thus not an unguided and unfettered power
which leaves it free to the State Government to select and prescribe such text
books as it may want only or capriciously please, but it is a power which is
con fined and embanked within limits by the object and purpose for which it is
conferred., The State Government cannot, therefore. act arbitrarily or
capriciously in selecting or prescribing text books but it has to exercise this
power in the light of the policy or principle that the best possible text
books, possessing the highest degree of merit and quality, should be, made
available to the students. This standard or criterion, gatherable from the
object and purpose of the Statute, controls and regulates the exercise of the
power by the State Government and it is by reference to this yard-stick that
the exercise of the power by the State Government is canalised and kept within
bounds. If the State Government in selecting and prescribing text books does
not follow this standard or criterion, the prescription of text books made by
the State Government, and not s. 4, sub-s. (1) would be liable to be condemned
as invalid. It is not possible to say that arbitrary and uncontrolled power has
been vested in the State Government and on that account s. 4, sub s. (1) is
bad.
It was however, contended on behalf of the
petitioner that even if there is any guidance provided by the Legislature, it
is futile because the power conferred on the State Government is a very wide
discretionary power and it can easily lend itself to misuse or abuse in the
hands of the executive without any one being able to pinpoint or demonstratably
show such misuse or abuse of power. The apprehension which was voiced was that
since there is no machinery provided by the Legislature which would ensure just
and proper execution of the power by the State Government according to the
guidelines laid down by the Legislature, the State Government may with impunity
act arbitrarily or capriciously and the selection and prescription of text
books by it may not only be vitiated by wrong evaluation of the merit and
quality of text books but may also conceivably be actuated by personal or
political corruption or nepotism on the part of those exercising the power on
behalf of the State Government. Now', it is true, and there, can be no doubt
about it, that the power conferred on the State. Government is a large
discretionary power and no machinery is laid down by the Legislature which
would ensure just and proper execution of the power by the State Government but
on that account alone the conferment of the power cannot be held to be invalid.
Whenever a discretionary power is conferred on any authority, there is always a
potential danger of its misuse or abuse, however much the Legislature may try
to hedge it with safeguards.
But the mere possibility that the power may
be misused or abused cannot per se induce the Court to deny the existence of
the power. It cannot be overlooked that the Legislature has confided this power
not to, any petty official but to the State Government and that itself is a
guarantee that the power 650 would be exercised in conformity with the policy
or principle laid down in the Statute. As said by this Court in Matajob Dobey v.
H. C. Bhari(l) "A discretionary power is not necessarily a discriminatory
power and abuse of power is not easily to be assumed where the discretion is
vested in the Government and not in a minor official." We have no doubt
that if the law is administered by the State Government "with an evil eye
and an unequal hand" or there is misuse or abuse of power by the State
Government, the arms of this Court would be long enough to reach it and to
strike down such misuse or abuse with a heavy hand. We may point out that State
Government has not yet made rules under s. 8 of the Act of 1973 prescribing the
machinery which it would adopt in selecting and prescribing text books-. It is
quite possible that when such machinery is prescribed by the State Government
it will allay any apprehension of possible misuse or abuse of power by the
State Government. if, on the other hand, it is found that such machinery
operates so as to deny equality of treatment to private publishers similarly
circumstanced, it may become vulnerable to attack under Art. 14 of the
Constitution.
We are not unmindful of the fact-and that is
a matter which has caused us great anxiety-that the power to select and
prescribe text books for obligatory used by students in schools can be a potent
and powerful weapon in the hands of the executive to inculcate its social,
economic or political philosophy and ideology in young impressionable minds
which have not yet developed the capacity to think independently for themselves
and which are easily amenable to the thoughts, ideas and influences to which
they are continually exposed. The State Government, controlled by a political
party having a particular social, economic and political philosophy or
ideology, may use the power of selecting and prescribing text books for
indoctrinating the highly receptive and sensitive minds of young boys and girls
and stifling the growth and development of free thought which is so essential
for maintenance of democratic way of life. It is our firm belief, nay, a
conviction which constitutes one of the basic values of a free society to which
we are wedded under our Constitution, that there must be freedom not only for
the thought that we cherish, but also for the thought that we hate. As pointed
out by Mr. Justice Holmes in Abrwnson v. United States (2) "the ultimate
good desired is better reached by free trade in ideas-the best test of truth is
the power of the thought to get itself accepted in the competition of the
market". There must be freedom of thought and the mind must be ready to
receive new ideas, to critically analyse and examine them and to accept those
which are found to stand the test of scrutiny and to reject the rest. That is
why our Vedic prayer says : "Let noble thoughts come to us from all
sides". The text books which are selected and prescribed or use in schools
must not, therefore, be such as project only a particular social, economic or
political philosophy or ideology. The mind or the young students must not be
cribbed, cabined and confined' by thoughts and ideas which form the social,
economic or Political philosophy or ideology of the political party which is
for the time being (1) [1955] 2 S.C.R. 925 (2) 250 U.S. 616 651 controlling the
State Government. It is, therefore, necessary that in the selection and prescription
of text books all political and other extraneous influences should be
eliminated. The only objective must be to give to the students the best
possible text books possessing the highest degree of merit and quality from a
purely objective and academic point of view so as to lead to a healthy
development of the personality of the students and make them truly nationalist,
patriotic, service-minded and useful members of the society. That is the reason
why the Secondary Education Commission recommended the constitution of a high
power committee which would be in charge of the function of selecting and
prescribing text books. It is true that under the Act of 1973 there is no
provision for constituting such a high power committee and instead, the power
to select and prescribe text books is vested in the State Government. But there
is nothing to prevent the State Government from setting up an independent high
Power committee on the lines indicated by the Secondary Education Commission
for the purpose of assisting it in the task of selecting and prescribing text
books. This can be done by the State Government by making appropriate rules
under s. 8 of the Act of 1973 and there is no reason to suppose that the State
Government will not do "so. Be that as it may, it is clear from the
aforesaid discussion that the power to select and prescribe text books
conferred on the State Government under s. 4, sub-s. (1) is not an unguided and
unfettered power and s. 4, sub-s. (1) is not liable to be struck down as
invalid on the ground of contravention of Art. 14, and if that be so, s. 4
sub-s. (3) also does not incur the condemnation of that article.
We, therefore, allow the petition and make
the rule absolute to a limited extent. We declare that the text books on
languages prescribed by the Board as also the text books which formed the
subject matter of the notifications dated 5th April, 1972, 25th April, 1972,
26th April, 1972 and 17th May, 1972 issued by the Board-both, of which
categories of text books were purported to be continued by the notification
dated 28th March, 1973-are not prescribed text books within the meaning of
sub-s. (1) or sub-s. (2) of s. 4. We also issue a writ quashing and setting
aside the notification dated 24th May, 1973 issued by the State Government. So
far as the other reliefs claimed by the petitioner are concerned, the petition
is rejected and the rule will stand discharged. There will be no order as to
costs.
P B. R. Petition allowed.
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