State of M.P & ANR Vs. Ram
Raghubir Prasad Agarwal & Ors [1979] INSC 32 (7 February 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1979 AIR 888 1979 SCR (3) 41 1979
SCC (4) 686
CITATOR INFO :
R 1990 SC 334 (33)
ACT:
Madhya Pradesh Prathmik Middle School Tatha
Madhhyamik Shiksha (Pathya Pusthakon Sambandhi Vyavastha) Adhiniyam, 1973. (MP.
Act No 13 Of 1973). Ss. 2(d), 3, 4 and 5-Whether) state has power to compile
and distribute its own text books. Mention of topics in bare outline whether
constitutes 'syllabi' in S. 2(d).
Mere communication to concerned officials or
Departments whether sufficient for 'publication' in s. (3).
HEADNOTE:
The M. P. Prathmik Middle School Tatha
Madhyamik` Shiksha (Pathya Pusthakon Sambandhi Vyavastha) Adhiniyam 1973
empowered the State Government to prescribe text books according to syllabus
laid down and to undertake the preparation, printing and distribution of text
books.
Section 2(d) of the Act defines
"syllabi" as a document containing courses of instructions for each
standard of primary, middle school and secondary education. Section 3 empowers
the State Government, in the case of primary and middle school education, and
the Board in the dace of secondary education, to lay down the syllabi and publish
the same. Section 4 lakes the State Government the competent authority to
prescribe the text-books in accordance with the syllabus laid down under s. 3.
Section 5 empowers the State Government to undertake the preparation, printing
and distribution of text-books itself or cause them to be done through such
agency as it deems fit and on such terms and conditions as may be prescribed.
The appellant (State Government) exercised
its power under s. 5 of the Act and produced the necessary text-book for
"Rapid Reading" an item in the syllabus for secondary schools and
distributed it among the students in many schools. Until then, the books of the
respondent, 2 private publisher were in use.
The respondent challenged the action of the
State Government in the High Court on the ground that the State Government had
not given consideration to the availability of text-books in terms of the
"syllabi" with private publishers as required by s. 5 of the Act,
before it produced and distributed the text-books compiled by itself among the
students of the secondary schools. The High Court upheld the challenge and held
that the statutory exercise envisaged under the Act had not been carried out
before preparing and distributing the Government text books.
In the State Government's appeal to this
Court it was contended that (I) as s. 2(d) envisages syllabus as a document
containing courses of instruction, a broad outline, a demarcation if the topic
would be sufficient compliance and that there need not be particularisation of details,
and (2) 'publication' of the syllabus, essential under s. 3 means communication
by the Board to the Government or the concerned authorities. On behalf of the
respondent it was submitted that the mere mention of topics in bare outline, as
in the instant case did not constitute 'syllabi' as defined in s. 2(d) and that
to fulfill, 4-196SCI/79 42 the statutory requisites a syllabus for a subject
must concretise and constellate courses of instruction, short of which it is no
syllabus in the eye of law.
Allowing the appeal in part,
HELD: 1. The syllabus for 'Rapid Reading',
suffers invalidation under s. 3 because it has not been published.
The publication must precede the Prescription
of text-books under s. 4 or their preparation under s. 5. [56C] In the instant
case the syllabus was published only on June 30, 1978 while the text-books were
prescribed in October, 1977. So ss. 3 and 4 have been breached and a fresh
decision by Government prescribing text books for 'Rapid Reading' must be
taken. [56D]
2. The State Government shall take a fresh
decision under ss. 4 and 5 read Together. If publishers of text-books or pro
bono publico representationists communicate relevant matters bearing on the
selection of text-books, their merits will be examined departmentally. If,
thereafter, Government considers it proper to take over the text-books business
under s. 5 it is free to do so. The private sector has no 'right' and
Government's jurisdiction is wide, although the State need not be allergic to
private publishers if books of excellence, inexpensive and well-designed, are
readily available. [56G-H]
3. The laying down of the syllabus is a
condition precedent to the prescription of text-books, because the courses of
instruction follow upon and should be in conformity with the syllabus and text
books are in implementation of the courses of instruction. [50B]
4. To fulfill the statutory requisites, a
syllabus for a subject must concretise and constellate courses of instruction,
short of which it is no syllabus in the eye of law. [51D]
5. No private publisher has a right under s.
4 that his text-book shall be prescribed or necessarily considered by
Government. No such right as is claimed by the respondent- publisher has,
therefore, been violated by the State Government. [54C]
6. The syllabus for 'Rapid Reading' is not
bad as falling short of definitional needs, although it is desirable for the
Board to be more expressive - i when laying it down. Wilful vagueness in
syllabi will invite an adverse verdict. [56A]
7. A syllabus may helpfully give general
features but may not cease to be so solely because only an outline is
silhouetted. 'Courses of Instruction' in s. 2(d) simply means the rubric for
teaching, not more. It must be a syllabus of courses and so the courses must be
spelt with relevancy, even though with brevity. [51G, 52A]
8. Functionally the syllabus must tell the
publisher and pundits in the concerned field sufficient to enable them to help
Government under s. 4 to choose text-books. If this minimum is not complied
with the court will use the lancet and issue an appropriate writ. [52C-D]
9. The expression "syllabi" must be
so interpreted as to fulfil the purpose of ss. 3 and 4 which means there must
be sufficient information for those concerned to know generally what courses of
instruction are broadly covered 43 under the heading mentioned, so that they
may offer text- books for such A courses. If there is total failure here the
elements of syllabi may well be held to be non-existent, even though experts might
claim otherwise. The law is what the Judges interpret the statute to be, not
what the experts in their monopoly of wisdom assert it to be. [52E-F]
10. 'Publication' means more than mere
communication to concerned officials or departments. The purpose of s. 3
animates the meaning of the expression 'publish'.
'Publication is "the act of publishing
anything; offering it to public notice, or rendering it accessible to public
scrutiny.... an advising of the public; a making known of something to them for
a purpose." [52H, 53A-B]
11. The legislative objective is to ensure
that when the Board lays down the 'syllabi' it must publish 'the same' so that
when the stage of prescribing text-books according to such syllabi arrives,
both the publishers and the Stab Government and even the educationists among
the public may have some precise conception about the relevant syllabi to
enable Government to decide upon suitable text-books from the private market or
compiled under s. S by the State Government. [53C]
12. "Publication" to the
educational world is the connotation of the expression. Even the student and
the teaching community may have to know what the relevant syllabus for a
subject is, which means wider publicity than minimal communication to the
departmental officialdom.[53D] Only when they come to know about the syllabi
prescribed representatives in the educational field or in the public sector may
be able to tell the State Government what type of text-books are available,
what kind of books will make for excellence in teaching and what manner of
material will promote the interests of the students in the subjects of study
[53H-54A]
13. Government has plenary power under s. 5
to produce its own text books in tune with the syllabi prescribed under s. 3.
No private publisher can quarrel with it on the ground that his profit is
affected or that the State sector acquires a monopoly in text book production.
The legislature has empowered the State to do so and there is no vice of
unconstitutionality whatever. The caveat built into s. S by the legislature is
that it authorises Government to enter the text-book field as a monopolist
"if it considers so to do." [54E-F]
14. Nationalisation of the activity of
preparation, printing or distribution of text-books is a serious step and
resort to that measure calls for a policy judgment. [54G]
15. The Court should not sit in judgment over
Government decisions in these matters save in exceptional cases. The law is
complied with if Government has, before undertaking action under s. 5, bestowed
consideration on matters of relevance which may vary from time to time and from
subject to subject. Government may like to avoid expenditure from the public
exchequer if books, inexpensive and qualitatively acceptable, are easily
available. The decision is that of the Government and it has a wide discretion.
Publishers have no right to complain, and if the mind of the Government has
been relevantly applied to the subject, courts must keep their hands off.
[55B-C] Naraindas Indutkhya v. State of M.P. & Ors., [1974] 3 SCR 624;
Black's Legal Dictionary, p. 1386, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 2062- 2063/ 78.
Appeals by Special Leave from the Judgment
and Order dated 20-9-78 of the Madhya Pradesh High Court in Civil Misc.
Petition No. 403/78.
A. K. Sen, K. K. Adhikari, S. K. Gambhir and
Miss B. Ramrikhyanai for the Appellant.
N. C. Upadhaya, K. P. Gupta and B. B.
Tawakley for Respondents 1-2.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-If King Midas suffered from the course of turning into gold
everything he touched, Indo-Anglian legalism suffers from the pathology of
making mystiques of simple words of common usage when they are found in the
Corpus Juris. We cannot afford this luxury of legalistics, the besetting sin of
law-in-action. This acid comment is provoked by the prolonged debate carried on
with logomachic dexterity in this appeal against a meticulous judgment where
the semantic complexity and definitional intricacy of innocent words like
'syllabus', 'courses of instruction' and 'publish' and the procedural mechanics
for prescribing text- books for secondary education set out in a fasciculus of
sections have been investigated.
Law, in a democratic, pluralist society
spreads over vast spaces where the Constitution of developing countries, like
ours, commands the Slate to adventure into a profusion of welfare measures and
commits to the judicial process the interpretation of legislation, not to
obfuscate but to objectify the meaning of enactments. The Justice System ceases
to be functional if courts do not make the technology of statutory construction
serve the betterment of society.
In Cardozo's lofty diction:
"We may figure the task of the judge, if
we please, as the task of a translator, the reading of signs and symbols given
from without. None the less, we will not set men to such a task, unless they
have absorbed the spirit, and have filled themselves with a love, of the
language they must read ." (1) If a broad and viable reading of statutory
language were not adopted by Judges filled with the wish to make things work
according to social justice courts may be classed with the dinosaurs.
(1) The Nature of the Judicial Process by
Benjamin N. Cardozo. P. 174, 45 The State of Madhya Pradesh, alive to its
obligation to promote education in widest commonalty, with accent on quality
and cost, among the impressionable generation, undertook the task of statutory
regulation of teaching material for 'primary education', 'middle school education',
and 'secondary education'. Then followed, in conformance with the rule of law,
executive action, legislative measures, regulatory procedures and
infra-structures, necessary for the incarnation of a State-directed but
expert-oriented scheme of pre-university education. A painstakingly accurate
and comprehensively detailed statement of the project, with an integrated
analysis of the statutory provisions and erudite enunciation of the law, is
found in the judgment of Bhagwati, J. in Naraindas(1), if we may say so with
respect, that a repeat performance here again may be supererogatory. We read
that ruling into this judgment by incorporations, as it were, and content
ourselves with a skeletal projection of the legislation with special reference
to the key sections, viz, ss. 3, 4 and 5 of the Madhya Pradesh Act No. 13 of
1973. Its title is Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya
Pustakon Sambandhi Vyavastha) Adhiniyam (hereinafter referred to, for short, as
the 1973 Act).
The respondent before us who was the
petitioner before the High Court-is a private publisher. It may be cynical to
say that textbooks are commodity for consumers of school education and there is
big money in the trade especially when the private sector in the book E business
has been enjoying a ready market provided by the proliferation of schools and
the obligatory purchase of text-books, once Government prescribes them. So,
behind the veil of educational excellence formulation of syllabi and competent
text-books is the vast profit pouring into private publishers. In our system,
unalloyed public interest litigation, through organisations crusading in the
field, is yet 'a consummation devoutly to be wished', and private vested
interests are the vociferous ventriloquists of public causes. Democratic
participation in the justice process gains reality only when popular organs
blossom from the desert and enter the litigative oasis with fighting faiths.
Here the respondent successfully challenged
before the High Court the validity of the prescription of the State's text-book
for 'Rapid Reading', an item in the syllabus for secondary schools. Once
Government books were chased out, the respondent filled the vacuum since prior
to the entry of the State his book on the subject had admittedly been legally
in vogue. The State has, by special leave, come up in appeal and secured a stay
of operation of the judgment of the High (1) Naraindas Indurkhva v. State of
Madhya Pradesh & Ors. [1974] 3 S.C.R. 624. Court, and its books are back in
circulation in the schools.
brief calendar of events shows that since the
opening of schools this academic year Government text-books have been in use up
till now, barring for about a month between the judgment of the High Court and
the stay ordered by this Court. This bears upon moulding the relief since the
benign power under Art. 226 is a special instrument of justice which, with
flexible pragmatism and genius for equity inhibits social trauma even while
upholding individual rights. The writ jurisdiction is geared to community good.
There is a trichotomy of school education in
Madhya Pradesh as in many other States-Primary, Middle and Secondary. We are
concerned in this case with the text-book controversy for secondary schools.
The Board of Secondary Education, Appellant No. 2, was constituted under Act
No. 23 of 1965 which also conferred power on it to prescribe courses of
instruction in such branches of secondary education as it deemed fit. Indeed,
the Board was a functional entity with expert capability and entrusted with
secondary education in its many facets. Even the power to make regulations was
given to the Board and it did make such regulations providing for appointment
of Committees on Courses which, in turn,- could lay down syllabi in the various
subjects and recommend suitable text-books when required. The courses approved
by the Committee went to the Board and when sanctioned by the Board found their
way in the printed prospectus which served as the guide-book for study and
examination for the students. All that we need emphasise here is that the
provisions of the 1965 Act and the regulations framed by the Board took good
care of the Rule of Law as against behavioral caprice of administrative organs
in this branch of education.
In 1973 the legislature enacted Act 13 of
1973, referred to earlier in this Judgment. The provisions of this Act form the
basis of the powers claimed by the appellants and the nidus of rights of the
respondent alleged to have been violated.
The scheme of the statute runs as follows:
Section 2 contains definitions and we are concerned particularly with s. 2(d)
which tells us what the legislature means by the expression 'syllabi'. The
Section also defines 'text-book', although there is not much quarrel about its
connotation in the case before us. One of the basic disputes between the
parties turns on the conceptual clarity of 'syllabi' as defined in 2(d).
Section 3 clothes the State Government and the Board with powers vis-a-vis
laying down of syllabi. To narrow the scope of the dispute we may straightway
state that s. 3(2) empowers the Board 47 to lay down 'syllabi' in the case of
secondary education. We may have to take a close-up of this provision a little
later. But suffice it to say for the present that the syllabus for 'Rapid
Reading', which is the bone of contention before us, is within the province of
the Board to lay down.
We may vivify the discussion by quoting the
provisions of direct concern in this case and they are ss. 2(d), 3 and 5.
"2.(d) syllabi" means a document
containing courses of instructions for each standard of primary education,
middle school education and secondary education;
3.(1) Subject to the provisions of
sub-section (2) 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.
(2) 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 the secondary education and in force
immediately before the appointed day shall be the syllabi laid down and
published for the purpose of sub-section (1).
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 con sultation 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 sub- section (1).
48 (3) As from the appointed day, no books
other than the text books prescribed under sub-section (1) or referred to in
sub-section (2) shall be used in any approved school or recognised school for
imparting instructions in accordance with syllabi in primary education, middle
school education or secondary education.
5. The State Government may, if it considers
it necessary so to do, undertake the preparation, printing or distribution of
text books itself or cause the text books to be prepared, printed or
distributed through such agency as it may deem fit on such terms and conditions
as may be prescribed." Section 2(d) conceputalises 'syllabi'; s. 3
statutorises the modus operandi for fixing the 'syllabus'.
Once the syllabus is fixed, the follow-up is
the prescription of text books in accordance with the syllabus.
Section 4 makes the State Government, the
competent authority, to prescribe text-books in accordance with the syllabus
laid down under s. 3. Of course, even the provisions of text books for
secondary education must be made by Government only after prior consultation
with the Board. This is obviously intended to ensure the quality of the text
books which sometimes suffers at the hands of unenlightened departmental
officers or unheeding political bosses too hubristic to listen to experts in
the field.
It is vital to notice that until valid
prescription of text-books under s. 4 (1) the books prescribed and in vogue
immediately before the change shall continue; that is to say, the legislature
has taken care to avoid a gap when there would be no text books for the
students to study and take their examinations.
The scheme of s. 4 is for the State
Government to prescribe text books. This may be done in one of the two ways.
Government may select from the private sector when text books are offered by
publishers, if they satisfy quality control, price, social perspective and
other relevant aspects. Indeed, many publishers compete in the text-book market
because it assures purchasers and profit.
However, for a variety of good reasons the
State Government may consider it necessary to depart from the practice of
picking and choosing from the private sector. May be, books are of sub-standard
quality; may be, the paper on which they are printed or the manner and design
may be unsatisfactory;
may be the cost is such that the poor
children may be 49 priced out. It may also be that Government thinks that more
excellence and better educational direction may be imparted to the impressionable
generation of students at the secondary school level by the public sector
getting such text-books compiled in conformity with the syllabi laid down by
the concerned authority. Section 5, therefore, makes it perfectly legitimate
for the State Government to n undertake the preparation, printing and
distribution of text-books itself or cause them to be so done through such
agency as it may deem fit and on such terms and conditions as may be
prescribed. In short, the relevant provision creates a facultative public
sector for text-book production and distribution. What is significant to note
is that the departure from the private sector and the
"nationalisation" of text- book manufacture may be undertaken only if
the State Government "considers it necessary so to do". Once it comes
to that judgment, the competence to deprive the private sector and entrust to
the public sector is beyond challenge.
In the present case, one of the subjects of
secondary education is "Rapid Reading". The syllabus has to be laid
down in this behalf. Text-books need to be prescribed in conformity with the
syllabi and then a decision has to be taken by the Government either to choose
extant text-books from the private publishers or take over the operation itself
if it considers it necessary so to do. The first appellant, in the present
case, chose to exercise its power under s. 5 and produced the necessary
text-book for "Rapid Reading" and distributed it among the students
in many schools. 'Until then, the respondent's books were in use for
"Rapid Reading". Naturally, when his customers vanished and his
profit was extinguished he came up to the Court contending that the statutory
exercise had not been carried out before preparing E' and distributing the text
books under s. 5 and that, for that reason, the Government text- books had to
be withdrawn as invalid and his books, instead, resuscitated for circulation.
The specific grounds of invalidation relied
on by the Writ Petitioner are many and the long Judgment of the High Court has
lavished discussion on these aspects. Counsel have sought to repeat the rival
contentions before us. But we do not think that it is necessary to embark upon
the labyrinthine details or prolix analyses which have engaged the learned
Judges of the High Court. Nor do we think that extensive or intensive
consideration of the decision in Naraindas's case (supra) is called for since
its ratio is clear and does not come in for serious application in the present
dispute. In this view, we proceed to specificate the precise issues pertaining
to the decision as to whether 50 the production and distribution of text-books
by the State Government, on its own, is liable to be voided on the score of any
fatal statutory infirmity.
The laying down of the syllabus is a condition
precedent to the prescription of text-books, because the courses of instruction
follow upon and should be in conformity with the syllabus and text-books are in
implementation of the courses of instruction. The first question that falls for
consideration, therefore, is as to whether there has been a legally sustainable
laying down of the syllabus for "Rapid Reading". If there has been,
the second crucial issue of importance is as to whether the State Government
has given consideration to the availability of text-books in terms of the
'syllabi' with the publishers.
If such publishers have offered their
text-books, Government may consider them from many angles and reach a
conclusion that it is necessary for the Government itself to undertake the
preparation, printing and distribution of text-books in this regard or entrust
these operations to a choosen agency.
The question is whether such a consideration
had been bestowed by the Government as required by s. 5 before it produced and
distributed the text-books compiled by itself among the students of the
secondary schools. Assuming there is any breach, the next question is whether
such non- compliance spells invalidation of the text-books altogether.
Finally, assuming all the points against the
State Government, should the Court make a realistic appraisal of the situation
as it exists currently and mould the relief appropriately so that the student
community, which has to take the examinations in a couple of months or so, may
not be obliged to switch text-books belatedly in taking their examinations. The
ultimate concern of the judicial process is not to guarantee the profit of the
private producers or to condone every executive sin but, within statutory
parameters, to promote the educational welfare of the student community.
The core of the controversy turns on whether
there is statutorily solemnised syllabus at all under s. 3(2) of the 1973 Act
and, whether the State has the facultative power to compile and distribute its
own text books under s. 5, even if there are private publishers in the field
with ready-made text-books This duplex challenge once disposed of, the other
disputes do not merit much discussion. Naraindas (supra), heavily relied on by
the respondent, is impeccable law but inapplicable here.
True many points arise, according to counsel.
But abbreviation, without amputation, does justice to the lis and avoids
forensic prolixity, and so we turn the focus on these two points and, in the
light of 51 Our answers, structure the relief to promote the interests of the
invisible and inarticulate student sector for whose sake the law was made. The
real party, in many litigative battles under Art. 226, is the community whose
processual participation is alien to the adversary system inherited from an individualistic
legal culture. The judges are the guardians of that silent sector until our
system of procedure is re-structured. This observation assumes prominence as we
shape the remedy finally.
Section 3 as well as s. 5 must now come under
the legal microscope. Before that, we must bestow attention on a preliminary
plea which respondent's counsel, encouraged by his success at the High Court
level, has urged before us. He argues that the mere mention of topics in bare
outline, such as has been done here by the Board of Secondary Education, does
not constitute 'syllabi' as defined in s. 2(d). To fulfill the statutory
requisites, a syllabus for a subject must concretise and constellate courses of
instruction, short of which it is no syllabus in the eye of law. If this be
valid, no syllabus, no text-book; and no text-book, the status quo ante; and
the book of the respondent being admittedly extant immediately before, it gains
legal re- incarnation and all the students shall have to do 'rapid reading' of
his book for which they must first buy them.
The Board is the legislative instrument for
laying down the syllabi and must be presumed to possess academic expertise
sufficient to understand what is a syllabus. Words of technical import whose
signification is familiar for specialists in the field should not be petrified
by courts based on verbalism. 'A little learning is a dangerous thing' and
courts should not 'rush in', tempted by definitional attraction, where experts
'fear to tread'. Section 2(d) tells us that a syllabus is a document containing
courses of instruction. A broad outline, a brief indication, a demarcation of
the topic may well meet with lexical approval. Moreover, s. 2(d) speaks of a
'course of instruction'. This can be a bare outline, a bald mention of the
matter and does not compel particularisation of details, even if it be
desirable. That part is taken care of by the next step of prescription of
text-books. A syllabus may helpfully give general features but may not cease to
be so solely because only an outline is silhouetted. For instance, 'music'
without more, is not syllabus, because it may range wildly from weird noises
which make music among African tribes but to an Indian ear may offensively
amount to 'sound and fury signifying nothing' to a concord of sweet sounds or
continuous flow of micro-notes which thrills the West and the East. But if
'sitar' or 'violin' is mentioned it illumines, although it still leaves much
for imagination to fill in a hundred details for instruction to be actually imparted
in the class.
52 'Courses of Instruction' in s. 2(d) simply
means the rubric for teaching, not more, although treacherous vagueness which
disables textbook producers from responding to the Government by offering their
books may be bad. It must be a syllabus of courses and so the courses must be
spelt out with relevancy, even though with brevity. To exemplify again,
'Justice' is not enough, Indian Justice System may fill the bill. Brief may be,
but not blank. While courts, will not surrender their decisional power to the
vagarious experts non-interference by courts in fields of specialists, save in
gross cases, is a wise rule of guidance. From this angle, we are not satisfied
that for so elusive a subject as 'Rapid Reading', 'particularise or perish'
should be the test. The absence of syllabus cannot defeat the case of the
State. We stress, however, that, functionally speaking, the syllabus must tell
the publishers and pundits in the concerned field sufficient to enable them to
help Government under s. 4 to choose text-books. If this minimum is not
complied with the court will use the lancet and issue an appropriate writ.
Language permitting, the appropriate
interpretational canon must be purpose-oriented. Therefore, the expression
"syllabi" must be so interpreted as to fulfill the purpose of ss. 3
and 4 which means there must be sufficient information for those concerned to
know generally what courses of instruction are broadly covered under the
heading mentioned, so that they may offer text-books for such courses. If there
is total failure here the elements of syllabi may well be held to be
non-existent even though experts might claim otherwise. The law is what the
Judges interpret the statute to be, not what the experts in their monopoly of
wisdom assert it to be.
Now we move on to s. 3 to verify what flaws
vitiate the laying down of syllabi. In this case if we predicate the existence
of syllabus the next ingredient it its publication "in such a manner as
may be prescribed." Publication of the syllabus is thus essential under s.
3 and when confronted by this requirement, Shri A. K. Sen, counsel for the
State, sought to construe that expression to mean communication by the Board to
the Government or other concerned authorities.
To publish, according to him, is to make
known to those concerned. On the contrary, Shri Upadhyaya, counsel for the
respondent, argued that "to publish" was more than to communicate to
the Government Departments and really meant making known to the community or
the concerned section of the community. Contextually speaking, we are satisfied
that 'publication' means more than mere communication to concerned officials or
Departments. To publish a news item is to 53 make known to people in general;
"an advising of the public or making known of something to the public for
a purpose" (Black's Legal Dictionary, p. 1386). In our view, the purpose
of s. 3 animates the meaning of the expression 'publish'. 'Publication' is
"the act of publishing anything;
offering it to public notice, or rendering it
accessible to public scrutiny.. an advising of the public; a making known of
something to them for a purpose." Logomachic exercises need not detain us
because the obvious legislative object is to ensure that when the Board lays
down the 'syllabi' it must publish 'the same' so that when the stage of
prescribing text-books according to such syllabi arrives, both the publishers
and the State Government and even the educationists among the public may have
some precise conception about the relevant syllabi to enable Government to
decide upon suitable text-books from the private market or compiled under s. 5
by the State Government itself. In our view, therefore, "publication"
to the educational world is the connotation of the expression. Even the student
and the teaching community may have to know what the relevant syllabus for a
subject is, which means wider publicity than minimal communication to the
departmental officialdom.
If this view be sound, the State Government
has failed to comply with the requisite of publication of the syllabus before
prescribing the text-books. On that ground atone the order of the Government
prescribing text-books must fail because the condition preceding such
prescription, namely, publishing of the syllabi has not been complied with. We
confine our observations only to the item relating to "Rapid Reading'' so
that there is no need for reopening other subjects and syllabi and to create
chaos or uncertainty.
What should be the follow-up action that the
Court should adopt in issuing the necessary direction on this finding that, for
want of publication of the syllabus, the prescription of text-books even under
s. 5 must fail ? Necessarily publication is important and we should insist that
the State Government should not dismiss it as a ritual of little moment. As we
have earlier indicated, but may repeat for emphasis that there is an object in
publishing the syllabi and this public purpose will be stultified to the
prejudice of the school-going community if the syllabi are not made known to
the public generally. Only when they come to know about the syllabi prescribed,
representatives in the educational field or in the public sector may be able to
tell the State Government what type of text-books are available, what kinds of
books will make for excellence in teaching and what manner of material will
promote 54 the interests of the students in the subjects of study. If there are
existing text-books, Government may give consideration for them or may invite
opinion of experts on their worth. Government may pay attention to the cost of
the books so made available, their readability, their design and arrangement,
the impression that they may produce on the 8 plastic minds and a host of other
factors. All these possibilities may be frustrated if the syllabi are not
published.
What has been done in the present case by the
State Government is to exercise its power under s. 5 to prepare, print and
distribute text books of its own compilation.
Certainly, this is well within the power of
Government under s. 5. To dispel misapprehension we emphasise that no private
publisher has a right under s. 4 that his text-book shall be prescribed or
necessarily considered by Government. No such right as is claimed by the
respondent-publisher has, therefore, been violated by the State Government. We
upset Government's text-books, not because the respondent- publisher has a
right to have his books necessarily considered by the Government, but because
the syllabi have not been published prior to the prescription of text-books.
We must erase another possible confusion.
Government has plenary power under s. 5 to produce its own text-books in tune
with the syllabi prescribed under s. 3. No private published can quarrel 13
with it on the ground that his profit is affected or that the State sector
acquires monopoly in text-book production. The legislature, in its wisdom, has
empowered the State to do so and there is no vice of unconstitutionality
whatever. But there is a caveat built into s. 5 by the legislature. Before the
State Government undertakes the preparation, printing or distribution of
text-books or causes them to be so done by any other agency, it must bestow
appropriate attention on the wisdom of the policy in the given circumstances.
Section 5 authorises Government to enter the text-book field as a monopolist
"if it considers it necessary so to do." These are weighty words and
cannot be slurred over.
Nationalisation of the activity of
preparation, printing or distribution of text-books is a serious step and
resort to that measure calls for a policy judgment. Government must consider it
necessary so to do and this consideration must imply advertence to relevant
factors. Myriad matters, material to a right decision, may be thought of since
books are more than collection of information but mental companionship for good
or evil. School children require uplifting books, not such as pollute their
minds or inject prurience. Their creativity must be kindled and not stifled.
The presentation of subjects must be appetising,
not inhibiting. The cost must be within the means of the 55 poor Indian parent.
Availability of sufficient number of books within easy reach so as to avoid a
scarcity situation may be yet another criterion. Indeed, it is beyond
exhaustive enumeration to catalogue the considerations. We do not think that
the Court should sit in judgment over Government decisions in these matters
save in exceptional cases. The law is complied with if Government has, before
under- taking action under s. 5, bestowed consideration on matters of relevance
which may vary from time to time and from subject to subject. We need hardly
say that Government may like to avoid expenditure from the public exchequer if
books, inexpensive and qualitatively acceptable, are easily available. The
decision is that of the Government and it has a wide discretion. Publishers
have no right to complain, and if the mind of the Government has been
relevantly applied to the subject, courts must keep their hands off.
The construction we have put upon s. 5 gives
Government power which is also a responsible power. Indeed, all public power is
a public trust and in that spirit ss. 4 and 5 must be executed. On this basis,
the direction that we give is that the State Government will publish, under s.
3, the syllabus for 'Rapid Reading' as a first step. Thereupon, representations
from any relevant quarters, if received, will be considered under s. 4 so as to
reach a decision on the prescription of the text-books according to the
syllabus. This decision may be either to choose some text- books available in
the field or to compile text-books on its own. If the decision is the latter,
Government is perfectly free to undertake preparation, printing and
distribution.
It may be right to caution the State while
choosing text-books from the private sector or preparing such books on their
own to remember the vital constitutional values of our nation. Social justice
is the corner stone of our Constitution. Freedom of expression is basic to our
democratic progress. The right to know, awareness of the implications of a
sovereign, secular, socialist republic and its membership and the broad
national goals incorporated in the Constitution are fundamental. When education
is a State obligation, when prescription of syllabi and text-books falls within
the governmental function, when the constellation of values mandated by the
Constitution is basic to our citizenship, the play of ss. 3, 4 and 5 must
respond to this script. Instruction at the secondary school level must be promotional
of these paramount principles.
Ultimately, it is Youth Power that makes for
a Human Tomorrow. The felt necessities of our cultural integration and
constitutional creed are fostered essentially at the school level. Books are
not merely the best companions but make or mar the rising generation.
56 We have reached the final. What remains is
to crystallise the conclusions and to formulate the directions.
The syllabus for 'rapid reading' is not bad
as falling short of definitional needs, although it is desirable for the Board
to be more expressive when laying it down. Willful vagueness in syllabi will
invite an adverse verdict. 'Rapid Reading', as a rubric, in itself, somewhat
slippery as a substantive topic and so the syllabus for it also may share that
trait. The new plea urged specifically for the first time at the argument stage
in this Court (and controverted by the State) that no syllabus has been laid
down, as a fact, for 'Rapid Reading' is too late to be permitted.
The syllabus for 'Rapid Reading' suffers
invalidation under s. 3 because it has not been published. The publication must
precede the prescription of text-books under s. 4 or their preparation under s.
5. Here the case of the State show that the syllabus was published only on June
30, 1978, while the text-books were prescribed in October 1977. So ss. 3 and 4
have been breached and a fresh decision by Government prescribing text-books
for 'Rapid Reading' must be taken.
We are not disposed, even as in the case of
the plea of no syllabus for 'Rapid Reading', to consider the nascent discovery
of Sri Upadhyaya, counsel for the respondent, that the two text-books
prescribed for 'Rapid Reading' were not even in printed existence when they
were prescribed.
Judicial proceedings, especially at the
earlier stages, should not ordinarily be allowed to become the scene of newly
discovered points of contention. There is no substitute for proper briefs and
good home-work. Never can controverted facts he raised de novo here. We
disallow the contention of non-existence of text-books in print or otherwise,
when they were prescribed.
Reverting to the project of providing for the
future course of action and to obviate the untowardness of a void in the
syllabus and text-books, we hold that the State Government shall take a fresh
decision under ss. 4 and 5 read together. If publishers of text-books or pro
bono publico representationists communicate relevant matters bearing on the
selection of text-books and the wisdom of the State itself under taking the task,
Government will give thought to them. There is no need to wait idefinitely for
such representations. If within one month from they are received, their merits
will be examined departmentally. If, thereafter, Government considers it proper
to take over the text book business under s. 5 it is free to do so. We make it
clear that the private sector has no "right" and Government's
jurisdiction is wide although the State need not be allergic to private
publishers if books of excellence, inexpensive and well-designed, are readily
available.
57 These directions take care of the future.
But what about the current academic year ? To change horses mid- stream may be
disastrous. Throughout the better part of the year, except for around a month,
Government text-books have been in use. The examinations are impending. To
harass the young alumni by putting them through fresh books of the respondent
(though in circulation last year) is an avoidable infliction. Therefore, for
the nonce, Government books for 'Rapid Reading' will continue in this year's
classes. We direct so. Before the next academic year begins, Government will
decide, under ss. 4 and 5, on preparing text-books itself or selecting from the
private sector. This will be done on or before March 31, 1979. If the decision
taken is either way, the books shall be well-stocked by the end of May.
We allow the appeal in part and dismiss in
part and as a corollary in dates and months but governmental processes are
often 'paper logged'. 'The fear that the State Government may not be
sufficiently conscious of the due priority to be given to the tasks now set
before it has persuaded us to issue these time-bound directions.
We allow the appeal in part and dismiss in
part and as a corollary, order the parties to bear their costs throughout.
N.V.K. Appeal allowed in part.
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