REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6015-6027/2011

State of Tamil Nadu & Ors.          …..

Appellants  

                                         Versus

K. Shyam Sunder & Ors.                                 …..Respondents

J U D G M E N T  

Dr. B.S. CHAUHAN, J.

1. These appeals have been preferred against the judgment and  

order dated 18.7.2011 of the High Court of Judicature at  Madras in  

Writ Petition Nos.12882, 12890, 13019, 13037, 13038, 13227, 13293,  

13296,  13345,  13381,  13390,  13547  of  2011  and  W.P.(M.D.)  

No.6143/2011 whereby the High Court has struck down Section 3 of  

The Tamil Nadu Uniform System of School Education (Amendment)

Act,  2011 (hereinafter  called  the  Amendment  Act  2011)  and issued  

directions to the State Authorities to implement the provisions of The  

Tamil  Nadu  Uniform  System  of  School  Education  Act,  2010  

(hereinafter  called  the  Act  2010),  i.e.  to  implement  the  common  

syllabus, distribute the textbooks printed under the uniform system of  

education  and  commence  the  classes  on  or  before  22.7.2011.  The  

Contempt  Petitions  have  been  filed  for  non-implementing  the  

directions given by this Court vide order dated 14.6.2011.

2. FACTS:   

A. In  the  State  of  Tamil  Nadu,  there  had been different  Boards  

imparting  basic  education  to  students  upto  10th standard,  

namely, State Board, Matriculation Board, Oriental Board and  

Anglo-Indian  Board.   Each  Board  had  its  own  syllabus  and  

prescribed  different  types  of  textbooks.  In  order  to  remove  

disparity in standard of education under different  Boards,  the  

State  Government  appointed  a  Committee  for  suggesting  a  

uniform  system  of  school  education.   The  said  Committee  

submitted its report on 4.7.2007.  Then another Committee was  

appointed to implement suggestions/recommendations made by  

the said Committee.  

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B. During the intervening period, The Right of Children to Free  

and Compulsory Education Act, 2009 (hereinafter called the Act  

2009), enacted by the Parliament,  came into force with effect  

from 1.4.2010 providing for free and compulsory education to  

every  child  of  the  age  of  6  to  14  years  in  a  neighbourhood  

school  till  completion  of  elementary  education  i.e.  upto  8th  

standard.   The  Act  2009  provided  that  curriculum  and  the  

evaluation  procedure  would  be  laid  down  by  an  Academic  

Authority to be specified by the appropriate State Government,  

by issuing a notification. The said Academic Authority would  

lay down curriculum and the evaluation procedure taking into  

consideration various factors mentioned under Section 29 of the  

Act  2009.  Section  34  of  the  Act  2009 also  provided  for  the  

constitution of a State Advisory Council consisting of maximum  

15 members. The members would be appointed from amongst  

persons having knowledge and practical experience in the field  

of  elementary  education  and  child  development.   The  State  

Advisory  Council  would  advise  the  State  Government  on  

implementation of the provisions of the Act 2009 in an effective  

manner.

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C. The  Cabinet  of  the  State  of  Tamil  Nadu took  a  decision  on  

29.8.2009 that it will implement the uniform system of school  

education in all schools in the State, form a Common Board by  

integrating  the  existing  four  Boards,  and  will  introduce  

textbooks providing for the uniform syllabus in Standards I and  

VI in the academic year 2010-11 and in Standards II to V and  

VII to X in the academic year 2011-12.  In order to give effect  

to the said Cabinet decision, steps were taken on administrative  

level  and  thus,  the  Tamil  Nadu  Uniform  System  of  School  

Education  Ordinance,  2009  was  issued  on  27.11.2009  which  

was  published  in  the  official  Gazette  on  30.11.2009.   The  

Ordinance  was  subsequently  converted  into  the  Act  2010  on  

1.2.2010.  The Act 2010 provided for the State Common Board  

of School Education  (hereinafter called the Board); imposition  

of penalties for wilful contravention of the provisions of the Act  

or  the  Rules  made  thereunder  (Section  11);  offences  by  

companies in the same regard (Section 12); and it also enabled  

the State Government to issue directions on  policy matters to  

the Board from time to time which would be binding on the  

Board (Section 14).

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D. Section  3  of  the  Act  2010  provided  that  the  Act  would  

commence:  

(a) in Standards I & VI from the academic year 2010-11; and

(b) in Standards II to V and VII to X from the academic year 2011- 12.

Sub-section(2) thereof required every school in the State to follow the  

norms fixed by the Board for giving instruction in each subject and  

follow the norms for conducting examination as may be specified by  

the  Board.   The  Board  approved  the  curriculum  and  textbooks  for  

Standards I and VI  on 22.3.2010 and the books were printed  in view  

of  the  consequential  order  dated  31.3.2010  by  the  Tamil  Nadu  

Textbook Corporation.

E. As many as 14 writ petitions were filed in the High Court of  

Madras challenging the validity of various provisions of the Act  

2010.   A Division Bench of the High Court vide judgment and  

order dated 30.4.2010 held  that the provisions of Sections 11,  

12  and  14  were  unconstitutional  and  struck  down  the  same  

while the Court issued elaborate directions for implementation  

of the common syllabus and the textbooks for Standards I and  

VI by the academic year 2010-11; and for all other Standards by  

the academic year 2011-12 or until the State makes the norms  

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and the syllabus and prepares the textbooks in advance for the  

same.  Further directions were issued by the Court to the State  

Government  to  bring  the  provisions  of  the  Act  2010  in  

consonance  with  the  Act  2009  and  notify  the  Academic  

Authority and the State Advisory Council under the Act 2009.  

The State was also directed to indicate approved textbooks from  

which private unaided schools could choose suitable for their  

schools.  The Court further directed the Government to amend  

the Act to say that the common/uniform syllabus was restricted  

to  five  curricular  subjects,  namely,  English,  Tamil,  

Mathematics,  Science  and  Social  Science  which  the  schools  

were  bound to  follow, but  not  in  respect  of  the co-curricular  

subjects.   The aforesaid judgment was duly approved by this  

Court vide order dated 10.9.2010 while dismissing large number  

of SLPs filed against the same by a speaking order.

F. In order  to implement  the Act 2010 and the judgment of  the  

High Court duly approved by this Court, the State Authorities  

referred  the  enumerated  components  of  the  curriculum  in  

respect of Classes II to V and VII  to X to an Expert Committee  

for  its  opinion.  The  curriculum  and  syllabus  prepared  for  

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uniform system of school education as well as the textbooks for  

Classes  II  to  V and  VII  to  X  for  uniform system of  school  

education  in  Government  schools  and  Government  aided  

schools were  approved by the Board.

G. However,  there was a change of State  Government  following  

the general elections of the State Assembly, on 16.5.2011. After  

completing the formalities,  the  Government  amended the Act  

2010  by  the  Amendment  Act  2011,  by  which  it  substituted  

Section 3 by a new Section  providing that the schools would  

follow the common syllabus as may be specified by the Board  

for each subject in Standards I to X from such academic year as  

may be notified by the Government in the official Gazette.  The  

Government may specify different academic years for different  

Standards.  The amendment also omitted  Sections 11, 12 and  

14  from the  Act  2010  since  those  Sections  had  been  struck  

down by the High Court as unconstitutional.

H. New academic session was to commence on 1.6.2011 and the  

Amendment  Act 2011 came into force on 7.6.2011.  A large  

number  of  writ  petitions  were  filed  challenging  the  said  

amendment.  A Division Bench of  the  High Court  vide order  

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dated  10.6.2011 stayed  the  operation  of  the  Amendment  Act  

2011,  but  gave liberty  to the  State  Government to conduct  a  

detailed study of the common syllabus and common textbooks  

and  further  clarified  that  the  State  Government  would  be  

entitled  to  add,  modify,  substitute  or  alter  any  chapter,  

paragraph or portion of the textbooks etc. and further permitting  

the managements of private schools to submit their list of books  

for approval to  the Government.  

I. The  aforesaid  interim  order  passed  by  the  High  Court  on  

10.6.2011  was  challenged  before  this  Court   and  all  those  

matters  stood  disposed  of  vide  judgment  and  order  dated  

14.6.2011 by which this Court modified the said interim order  

inter-alia,  directing  constitution  of  a  committee  of  experts,  

which the State Government  had already undertaken to appoint,  

to  examine  ways  and  means  for  implementing  the  uniform  

education system, common syllabus,  and the textbooks which  

were to be provided for Standards II to V and VII to X under the  

Act 2010.  It   requested the High Court to determine if such  

textbooks  and  the  amended  syllabus  would  be  applicable  to  

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Standards II to V and VII to X  keeping in view the provisions  

of  the amended Act.

J. In  pursuance  of  the  said  order,  an  Expert  Committee  was  

constituted and after having several meetings, a joint report was  

submitted to the High Court.  The High Court after considering  

the said report, vide judgment and order dated 18.7.2011, found  

fault with the report of the Expert Committee and struck down  

Section  3  of  Amendment  Act  2011 with  a  direction  that  the  

State  shall  distribute  the textbooks printed under the uniform  

system of education to enable the teachers to commence classes,  

and complete distribution of textbooks on or before 22.7.2011.    

Hence, these appeals.  

RIVAL SUBMISSSIONS:

3. Shri P.P. Rao, Shri C.A. Sundaram, Dr. Rajeev Dhavan, Dr.  

Abhishek M. Singhvi,  Sr.  Advocates,  Shri  A. Navaneetha Krishnan,  

learned  Advocate  General  and  Shri  Guru  Krishna  Kumar,  learned  

Additional Advocate General for the State of Tamil Nadu, appearing  

for the  appellants, have submitted that the High Court vide its earlier  

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judgment  dated  30.4.2010  had  issued  directions  to  the  State  

Government to amend the Act 2010 as certain provisions thereof had to  

be  brought  in  conformity  with  the  Act  2009  and  the  State  had  to  

constitute  the  Board  and designate  the  Academic  Authority  and the  

State Advisory Council. In view thereof, it was necessary to bring the  

Amendment  Act  2011.  Thus,  basically  it  was in  consonance  and in  

conformity with the judgment dated 30.4.2010 which has duly been  

approved by this Court. The  High Court in its earlier judgment itself  

gave  liberty  to  the  State  to  implement  the  common  syllabus  and  

distribute text books under the Act 2010 from academic year 2011-12  

or with any future date after the norms were made known by the State  

Authorities so far as the students of Standards II to V and VII to X are  

concerned.  Therefore, in view of the same, the High Court committed  

an  error  holding  that  the  Amendment  Act  2011  tantamounts  to  

repealing the Act 2010. The High Court itself has accepted the settled  

legal proposition that the question of malafide or colourable exercise of  

power cannot be alleged against the legislature, but still it recorded the  

finding  that  the  Amendment  Act  2011  was  a  product  of  arbitrary  

exercise of power. The authorities had to ensure compliance with the  

National Curriculum Framework 2005  (hereinafter called NCF 2005)  

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prepared  by  the  National  Council  of  Educational  Research  and  

Training  (hereinafter  called  NCERT),  which  had  laid  down a  large  

number of guidelines for preparing the syllabus and curriculum for the  

children.   The  Government  of  India  issued  Notification  dated  

31.3.2010,  published  in  the  Official  Gazette  of  India   on  5.4.2010,  

recognizing  the NCERT as the Academic Authority to lay down the  

curriculum and evaluation procedure for elementary education and to  

develop a framework on national curriculum. In consequence thereof, a  

Government Order dated 31.5.2010 was also issued by the Ministry of  

Human  Resources  Development  to  the  effect  that  in  view  of  the  

statutory provisions of the Act 2009, which provided that the Central  

Government shall  develop a framework on national curriculum with  

the help of Academic Authority specified under Section 29 thereof,  the  

NCF 2005 would be the NCF till such time as the Central Government  

requires  to develop a  new framework.  After  the order  of this  Court  

dated 14.6.2011, the Expert  Committee   appointed by the State  had  

gone through the syllabus and the text books already printed and after  

having various meetings, came to the conclusion that the same required  

thorough  revision  and  therefore,  submitted  a  report  that  it  was  not  

possible to implement the Act 2010 in the academic year 2011-12.   

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The  Advocate  General  of  Tamil  Nadu  had  given  

assurance to the High Court that under all circumstances the Act 2010  

will be implemented in the next academic year, i.e. 2012-13. However,  

the Court did not consider the same at all. It  falls  within  the  

exclusive domain of the legislature/ Government as to from which date  

it would enforce a Statute. The court cannot even issue a mandamus to  

the  legislature  to  bring  a  particular  Act  into  force.  Therefore,  the  

question of striking down the Amendment Act 2011 on the ground that  

implementation of the Act 2010 to be deferred indefinitely is not in  

accordance with the settled legal propositions. The State had to appoint  

various  authorities  and  notify  the  same  as  required  under  various  

statutes.  Once  the  provision  stands  amended  and  the  amending  

provisions  are  struck  down  by  the  Court,  the  obliterated  statutory  

provisions would not revive automatically unless the provisions of the  

amending  statutes  is  held  to  be  invalid  for  want  of  legislative  

competence. The appeals deserve to be allowed and the judgment and  

order of the High Court impugned are liable to be set aside.  

4. Per  contra,  Shri  T.R.  Andhyarujina,  Shri  Basava  Prabhu S.  

Patil, Shri R. Viduthalai,  Shri Dhruv Mehta, Shri M.N. Krishnamani  

and  Shri  Ravi  Verma  Kumar,  Sr.  Advocates   and  Shri  Prashant  

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Bhushan  and  Shri  N.G.R.  Prasad,  Advocates  appearing  for  the  

respondents  have submitted that the Amendment Act is a political fall  

out due to change of  Government. The new Government was sworn in  

on 16.5.2011. The Cabinet on 22.5.2011 decided not to implement the  

uniform education  system which  was  purely  a  political  decision  as  

there was no material before the Cabinet on the basis of which it could  

be decided that implementation of the Act 2010 was not possible. The  

academic  session  which  had  to  start  on  1.6.2011  was  postponed  

extending  the  summer  vacation  upto  15.6.2011  vide  order  dated  

25.5.2011. The decision of the Cabinet was challenged before the High  

Court by filing writ petitions on 1.6.2011 and during the pendency of  

the said cases,  the Amendment  Act 2011 was passed hurriedly,  that  

was a totally arbitrary and unwarranted exercise underlined by sheer  

political  motives.  The  Amendment  Act  2011  was  promulgated  on  

7.6.2011 itself with retrospective effect i.e. with effect from 22.5.2011,  

the date of decision of the Cabinet, not to implement the Act  2010.  

The Amendment Act 2011 has taken away the effect of the judgments  

of the High Court dated 30.4.2010 and of this Court dated 10.9.2010,  

wherein  it had been held that for Standards I & VI,  the Act 2010 will  

be implemented from academic year 2010-11 and for others from the  

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academic year 2011-12. Under the said judgment, the implementation  

of Act 2010 for Standards I & VI as directed by Court had also been  

taken away by the Amendment Act 2011. The mandate of the statute  

that  for  Standards  II  to  V  and  VII  to  X,  the  Act  2010  will  be  

implemented  from academic  year  2011-12,  stood  completely  wiped  

out.  Not fixing any future date for implementation of the Act 2010  

while  bringing  the  Amendment  Act  2011,  the  legislature  has  

substantially  repealed  the  Act  2010.  The  Statement  of  Objects  and  

Reasons  are a preface to the intention of the legislature and provide  

guidelines for interpreting the statutory provisions.  The same provides  

that  the  authorities  have  taken  a  decision  to  scrap  the  uniform  

education system adopted under the Act 2010 and the State will search  

for a better alternative.  The legislature is not competent to overrule a  

judicial  decision  of  a  competent  court  or  take  away  its  effect  

completely as it amounts to trenching upon the judicial powers of the  

Court. The Amendment Act 2011 is liable to be struck down solely on  

this  ground.           

The law does not permit  change of policies merely  because of  

another political party with a different political philosophy coming in  

power, as it is the decision of the Government, the State, an Authority  

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under Article 12 of the Constitution, and not of a particular person or a  

party, which is responsible for an enactment and implementation of all  

laws. The High Court rightly came to the conclusion that the Expert  

Committee  was  not  unanimous  on  every  issue  regarding  the  

curriculum,  syllabus  and  quality  of  text  books.  Even  if  some  

corrections were required, it  could have been done easily by issuing  

administrative orders.  The authorities defined under the Act 2009 had  

already been appointed, and even for giving effect to the judgment  of  

the High Court dated 30.4.2010, it was not necessary to bring about  

any fresh legislation.  In case the amending statute is held to be invalid  

being  violative  of  any  of  the  fundamental  rights  or  arbitrary,  the  

repealed provisions would automatically revive. Conferring unfettered  

powers  on  the  executive,  without  laying  down  any  criterion  or  

guidelines to enforce the Act 2010, tantamounts to abdication of its  

legislative powers. Non-availability of choice of multiple text books for  

a very few schools could not be a ground for scrapping the Act 2010.  

The appeals lack merit and are liable to be dismissed.  

5. We have considered the rival  submissions made by learned  

counsel for the parties and perused the record.  

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6. In post-Constitutional era, an attempt has been made to create  

an egalitarian society removing disparity amongst individuals, and in  

order to achieve that purpose, education is one of the most important  

and effective  means.  After  independence,  there  has  been an  earnest  

effort to bring education out of commercialism/mercantilism.  In the  

year 1951, the Secondary School Commission was constituted as per  

the recommendation of Central Advisory Board of Education and an  

idea  was  mooted  by  the  Government  to  prepare  textbooks  and  a  

common  syllabus  in  education  for  all  students.   In  1964-1966,  the  

report  on  National  Education  Policy  was  submitted  by  the  Kothari  

Commission  providing  for  common  schools  suggesting  that  public  

funded schools be opened for all children irrespective of caste, creed,  

community, religion, economic conditions or social status. Quality of  

education imparted to a child should not depend on wealth or class.  

Tuition fee should not be charged from any child, as it would meet the  

expectations of parents with average income and they would be able to  

send  their  children  to  such  schools.  The  recommendations  by  the  

Kothari  Commission  were  accepted  and  reiterated  by  the  Yashpal  

Committee  in  the  year  1991.  It  was  in  this  backdrop that  in  Tamil  

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Nadu, there has been a demand from the public at large to bring about a  

common education system  for all children.  

In  the  year  2006,  in  view  of  the  struggle  and  

campaign  and  constant  public  pressure,  the  Committee  under  the  

Chairmanship  of  Dr.  S.  Muthukumaran,  former  Vice-Chancellor  of  

Bharathidasan  University  was  appointed  which  recommended  to  

introduce  a   common  education  system  after  abolishing  the  four  

different Boards then in existence in the State. Subsequent thereto, the  

Committee constituted of Shri M.P. Vijayakumar, IAS was appointed  

to look into the recommendations of  Dr. S. Muthukumaran Committee  

which  also  submitted  its  recommendations  to  the  Government  to  

implement a  common education system upto Xth standard.  

7.        The right to education is a Fundamental Right under Article 21-

A inserted by  the 86th amendment of the Constitution. Even before the  

said  amendment,  this  Court  has  treated  the  right  to  education  as  a  

fundamental right. (Vide: Miss Mohini Jain   v.  State of Karnataka  

& Ors.,  AIR 1992 SC 1858;  Unni Krishnan, J.P. & Ors. etc. etc. v.  

State of A.P & Ors. etc. etc. , AIR 1993 SC 2178; and  T.M.A. Pai  

Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC  

481).  

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There has been a campaign that right to education under Article  

21-A of our Constitution be read in conformity with Articles 14 and 15  

of the Constitution and there must be no discrimination in quality of  

education.  Thus,  a  common  syllabus  and  a  common  curriculum  is  

required. The right of a child should not be restricted only to free and  

compulsory  education,  but  should  be  extended  to  have  quality  

education without any discrimination on the ground of their economic,  

social and cultural background.  

Arguments of the propagators  of this  movement  draw support  

from the judgment of U.S.  Supreme Court in the case of  Brown v.  

Board  of  Education, 347  U.S.  483  (1954)  over-ruling  its  earlier  

judgment in  Plessy v. Ferguson, 163 U.S. 537 (1896), where it  has  

been held that  “separate  education  facilities  are  inherently  unequal”  

and thus, violate the doctrine of equality.   

The  propagators  of  this  campaign  canvassed  that  uniform  

education system would achieve the code of common culture, removal  

of disparity, depletion of  discriminatory values in human relations. It  

would  enhance  the  virtues  and  improve  the  quality  of  human  life,  

elevate the thoughts which advance our constitutional  philosophy of  

equal  society.  In  future,  it  may  prove  to  be  a  basic  preparation  for  

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uniform civil code as it may help in  diminishing opportunities to those  

who foment fanatic and fissiparous tendencies.  

In  Rohit Singhal & Ors. v. Principal, Jawahar N.  

Vidyalaya & Ors., AIR 2003 SC 2088, this Court expressed its great  

concern regarding education for children observing as under:-

“Children are not only the future citizens   but also the future of the earth. Elders in general,   and  parents  and  teachers  in  particular,  owe  a   responsibility for taking care of the well-being and  welfare of the children. The world shall be a better   or worse place to live according to how we treat   the  children  today.  Education  is  an  investment  made by the nation in its children for harvesting  a future crop of responsible adults productive of   a well functioning Society. However, children are  vulnerable.  They  need  to  be  valued,  nurtured,   caressed and protected.” (Emphasis added)

8. In  State of Orissa v. Mamta Mohanty, (2011) 3 SCC 436,  

this Court emphasised on the importance of education observing that  

education connotes the whole course of scholastic instruction which a  

person has received.  Education connotes the process of training and  

developing the  knowledge,  skill,  mind and character  of  students  by  

formal schooling.  The Court further relied upon the earlier judgment  

in Osmania University Teachers’ Assn. v. State of A.P. & Anr., AIR  

1987 SC 2034, wherein it has been held as under:  

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“.…Democracy  depends  for  its  very  life   on a high standard of general, vocational and professional   education. Dissemination of learning with search for new  knowledge with discipline all round must be maintained at   all costs.”

The case  at hand is to be proceeded with keeping this ethical  

backdrop in mind.  

9. While  deciding  the  case  earlier,  the  Division  Bench  of  the  

Madras High Court on 30.4.2010 held that:

(i) The provisions of Sections 11, 12 and 14 of the Act  

were ultra  vires and unconstitutional,  and thus struck them  

down.   However,  considering  the  problems  of  the  State  

authorities, the Division Bench concluded that the State was  

competent to bring in an education system common to all in  

the interest of social justice and quality education.  The order  

further read as under:  

“Implementation of the syllabus and text  books is postponed till the academic year 2011-12  or until the State makes known the norms and the  syllabus and prepares the text books in advance.”  

(Emphasis added)

(ii)  In the meantime the State would bring the provision of  

the Act 2010 in line with the Central Act, e.g. the State shall  

specify  by  Notification  the  Academic  Authority  and  the  

State Advisory Council.  The Board shall also indicate what  

the approved books are.  The State shall by amending the  

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section or by introducing a schedule to the Act,  indicate  

that the syllabus is restricted to curricular subjects  and all  

schools are bound to follow the common syllabus only for  

the curricular subjects and not for the co-curricular subjects.  

The schools  may  choose  from multiple  text  books vis.  

Government produced text books which are prescribed text  

books  and  the  Government  approved  text  books  in  all  

subjects both curricular and co-curricular.    

(iii) The schools shall follow the norms as far as they  

are practicable. There can be no Board examination upto the  

level of elementary education but the assessment norms may  

be specified. Norms shall be fixed by the Board. The State  

may  make  it  clear  whether  this  Board  will  also  be  the  

Academic  Authority  under  the  Central  Act.  However,  

considering the request of the learned Additional Advocate  

General  just  after  pronouncing  the  judgment  the  Court  

accepted that Section 3 as modified by the Court would be  

implemented  for  Standards  I  and VI  from academic  year  

2010-11,  provided  the  Board  fixed  the  norms  before  

15.5.2010.   

      The said judgment has duly been approved by this Court  

by a speaking order dated 10.9.2010.   

10. Decision  of  the  Cabinet  dated  22.5.2011,  to  postpone  the  

enforcement  of  the  Act  2010  was  challenged  through  various  writ  

petitions. Meanwhile, the government issued an Ordinance which was  

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converted to Act 2011 passed on 7.6.2011 with retrospective effect i.e.  

22.5.2011, the date on which the decision was taken by the Cabinet of  

the  State  in  this  regard.  Accordingly,  writ  petitions  were  amended  

challenging the validity of the Amendment Act 2011. Interim orders  

passed by the High Court therein were challenged before this Court.  

11. This Court in its judgment and order dated 14.6.2011  inter-

alia, directed as under:

(i)         The academic Scheme in force for the Academic year  2010-11 for Standards I and VI shall continue to be in force in  all respects for the Academic year 2011-12 as well;

(ii) Each text  book and to what extent  the  amended syllabus  will  be  applicable  to  every  course  shall  be  finally  determined by the High Court keeping in view the amended  provisions of the Act and its impact; and  

(iii)           We hereby direct the State to appoint a Committee,  which  it  had  already  undertaken  to  appoint  primarily  to  examine  ways  and  means  of  implementing  the  uniform  education system to the classes (II to V and VII  to X) in  question; common syllabus and the text books which are to  be provided for the purpose.  

12. The  aforesaid  directions  make  it  clear  that  the  issues  with  

regard  to  syllabus  and  text  books  were  to  be  determined  after  

considering the report of the Expert Committee appointed by the State  

to  examine  ways  and  means  of  implementing  the  uniform  

education system  in Standards (II to V and VII  to X) in question,  

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common syllabus and the text books which are to be provided for the  

purpose. Thus, it was the Expert Committee which had been assigned  

the  role  to  find  out  ways  and  means  to  implement  the  common  

education policy etc.  

13. The High Court in the impugned judgment while examining  

the  validity  of  the  amended  provisions  took  note  of  settled  legal  

propositions as under:

“As there is no challenge to the Amending Act  on the ground of  legislative  incompetence,  we  are  not  required  to  examine  the  effect  of  the  Amending Act, on such grounds or to examine  whether  the  Amending  Act  is  a  colourable  legislation on such aspects. Therefore, we have to  examine the matters solely based on the directions  issued by the Hon’ble Supreme Court in its order  dated 14.6.2011. The Amending Act which has the  effect of repeal of the Parent Act under the guise of  postponement of its implementation, when in fact  Parent Act has already been implemented, though  partially, the Amending Act has to be held to be  arbitrary piece of legislation which does not satisfy  the  touchstone  of Article 14 of the Constitution of  India.”   (Emphasis added)

14. The High Court after examining the validity of the  

Amended Act held:  

(I) The  Committee  so  constituted  may  not  be  

justified  in  submitting the  report  stating  that  

the  entire  uniform  system  of  education  be  

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scrapped  and the text books already provided  

for be discarded.

(II) The Expert Committee has mis-directed itself  

as  it  ought  to  have  proceeded  primarily  to  

examine the ways and means of implementing  

the uniform system of education, curiously the  

Committee,  in its  final  report  concluded that  

no text  book can  be used for  the  academic  

year 2011-12.  

(III) The  Committee  members  were  not  of  the  

unanimous opinion that  the uniform syllabus  

and common text books have to be discarded  

from  the  current  year.  Each  member  has  

pointed out certain defects and recommended  

for certain changes and additions.

(IV)  In the order dated 10.6.2011, the High Court  

directed  the  Government  to  notify  the  

approved text books after conducting the study  

with  a  view  to  comply  with  the  direction  

issued earlier on 30.4.2010. This direction was  

issued to enable the schools to choose from the  

multiple  text  books.   However,  these  orders  

and  directions  have  been  discarded  by  the  

State.  

(V) The State has exceeded its power in bringing  

the Amending Act to postpone an enactment  

which has already come into force. As there is  

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a  sudden  change  in  the  policy  of  the  

Government from its predecessor immediately  

after coming into power that the Court had to  

see  the  impact  of  the  amendment,  

notwithstanding  the  competence  of  the  

legislature to pass an Amendment Act.

(VI) If the law was passed only ostensibly but was  

in truth and substance, one for accomplishing  

an  unauthorized  object,  the  court  would  be  

entitled to lift the veil and judicially review the  

case.

(VII) The State  has  sought  to  achieve  indirectly  what  

could not  be achieved directly  as  it  was  prevented from  

doing so in view of the judgment of the Division Bench  

which upheld the validity of the Parent Act 2010.

(VIII) The Amendment  Act 2011 is  an arbitrary piece of  

legislation  and  violative  of  Article  14  of  the  

Constitution  and  the  Amendment  Act  2011  was  

merely  a  pretence  to  do  away  with  the  uniform  

system of  education  under  the  guise  of  putting on  

hold the implementation of the Parent Act, which the  

State was not  empowered to do so.

(IX) If  the  impugned  Amending  Act  has  to  be  given  

effect to, it would result in unsettling various issues  

and  the  larger  interest  of  children  would  be  

jeopardized.  

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15. There are claims and counter claims on each factual  aspect  

and  the  High  Court  has  dealt  with  each  issue  elaborately,  in  our  

opinion,  to  an   unwarranted  extent.   However,  before  we  proceed  

further, it may be necessary to examine the legal issues:-

I. CHANGE  OF  POLICY  WITH  THE  CHANGE  OF  GOVERNMENT:

16. The Government has to rise above the nexus of vested interests  

and  nepotism  and  eschew  window-dressing.  "The  principles  of  

governance have to be tested on the touchstone of justice, equity, fair  

play and if a decision is not based on justice, equity and fair play and  

has taken into consideration other matters, though on the face of it, the  

decision may look legitimate but as a matter of fact, the reasons are not  

based on values but to achieve popular accolade, that decision cannot be  

allowed to  operate”.  (Vide:  Onkar Lal  Bajaj  etc.  etc.  v.  Union of  

India & Anr. etc. etc., AIR 2003 SC 2562).  

17. In  State of Karnataka & Anr. v. All India Manufacturers  

Organisation & Ors., AIR 2006 SC 1846, this Court examined under  

what circumstances the government should revoke a decision taken by  

an earlier Government. The Court held that an instrumentality of the  

State cannot have a case to plead contrary from that of the State and the  

policy  in  respect  of  a  particular  project  adopted  by  the  State  

2

Government should not be changed with the change of the government.  

The Court further held as under:-  

"It is trite law that when one of the contracting  parties is State within the meaning of Article 12 of  the  Constitution,  it  does  not  cease  to  enjoy  the  character of "State" and, therefore, it is subjected to  all  the  obligations  that  "State"  has  under  the  Constitution. When the State's acts of omission or  commission  are  tainted  with  extreme  arbitrariness and with mala fides, it is certainly  subject  to  interference  by  the  Constitutional  Courts."  (Emphasis added)

18. While deciding the said case, reliance had been placed by the  

Court on its earlier judgments in  State of U.P. & Anr. v. Johri Mal,  

AIR 2004 SC 3800; and State of Haryana v. State of Punjab & Anr.,  

AIR 2002 SC 685.  In  the  former,  this  Court  held  that  the  panel  of  

District Government Counsel should not be changed only on the ground  

that the panel had been prepared by the earlier Government. In the latter  

case, while dealing with the river water-sharing dispute between two  

States, the Court observed thus:  

" ………in the matter of governance of a State or in  the  matter  of  execution  of  a  decision  taken  by  a  previous Government, on the basis of a consensus  arrived  at,  which  does  not  involve  any  political  philosophy,  the  succeeding  Government  must  be  held  duty-bound  to  continue  and  carry  on  the  unfinished  job  rather  than  putting  a  stop  to  the  same."  

2

19. In  M.I.  Builders  Pvt.  Ltd.  v.  V.  Radhey  Shyam Sahu &  

Ors., AIR 1999 SC 2468, while dealing with a similar issue, this Court  

held that Mahapalika being a continuing body can be estopped from  

changing its stand in a given case, but where, after holding enquiry, it  

came to the conclusion that action was not in conformity with law, there  

cannot be estoppel against the Mahapalika.  

20. Thus, it is clear from the above, that unless it is found that act  

done by the authority earlier in existence is either contrary to statutory  

provisions,  is  unreasonable,  or  is  against  public  interest,  the  State  

should not change its stand merely because the other political party has  

come into power. Political agenda of an individual or a political party  

should not be subversive of rule of law.   

II. COLOURABLE LEGISLATIONS:

21. In  The State of Punjab & Anr. v. Gurdial Singh & Ors.,  

AIR 1980 SC 319, this Court held that when power is exercised in  bad  

faith  to  attain  ends  beyond  the  sanctioned  purposes  of  power  by  

simulation  or  pretension  of  gaining  a   legitimate  goal,  it  is  called  

colourable exercise of power.  The action becomes bad where the true  

object is to reach an end different from the one for which the power is  

entrusted, guided by an extraneous consideration, whether good or bad  

2

but  irrelevant  to  the  entrustment.   When  the  custodian  of  power  is  

influenced in exercise of its power by considerations outside those for  

promotion of which the power is vested, the action becomes bad for the  

reason that power has not been exercised bonafide for the end design.   

22. It has consistently been held by this Court that the doctrine of  

malafide does not involve any question of bonafide or malafide on the  

part of legislature as in such a case, the Court is concerned to a limited  

issue of competence of the particular legislature to enact a particular  

law.  If the legislature is competent to pass a particular enactment, the  

motives which impelled it to an act are really irrelevant.  On the other  

hand, if the legislature lacks competence, the question of motive does  

not arrive at all.  Therefore, whether a statute is constitutional or not is,  

thus, always a question of power of the legislature to enact that Statute.

        Motive  of  the  legislature  while  enacting  a  Statute  is  

inconsequential:  “Malice or motive is beside the point, and it is not   

permissible  to  suggest  parliamentary  incompetence  on  the  score  of   

mala fides.”  

         The legislature, as a body, cannot be accused of having passed a  

law for  an extraneous  purpose.  This  kind of  “transferred malice”  is  

unknown in the field of legislation.

2

[See:  K.C. Gajapati Narayan Deo & Ors. v. State of Orissa,  AIR  

1953 SC 375; R.S. Joshi, Sales Tax Officer, Gujarat & Ors. v. Ajit  

Mills  Limited & Anr.,  AIR 1977 SC 2279; K. Nagaraj & Ors.  v.  

State  of  Andhra  Pradesh  &  Anr., AIR  1985  SC  551;  Welfare  

Assocn.  A.R.P., Maharashtra & Anr. v. Ranjit P. Gohil & Ors.,  

AIR 2003 SC 1266; and State of Kerala & Anr. v. Peoples Union for  

Civil Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46].

III. LAWS  CONTRAVENING ARTICLE 13(2):

23. The legislative competence can be adjudged with reference to  

Articles 245 and 246 of the Constitution read with the three lists given  

in the Seventh Schedule as well as with reference to Article 13(2) of  

the Constitution which prohibits the State from making any law which  

takes  away  or  abridges  the  rights  conferred  by  Part-III  of  the  

Constitution and provides that any law made in contravention of this  

Clause shall, to the extent of contravention be void.   

24. In Deep Chand & Ors. v. State of U.P. & Ors.,  AIR 1959  

SC 648, this Court held:

“There  is  a  clear  distinction  between  the  two  clauses of Article 13. Under cl. (1) of Article 13, a   pre-Constitution law subsists except to the extent   of its inconsistency with the provisions of Part III;   whereas,  no  post-Constitution  law can  be  made  

3

contravening  the  provisions  of  Part  III,  and  therefore the law, to that extent, though made, is a   nullity from its inception of this clear distinction is   borne  in  mind  much  of  the  cloud  raised  is   dispelled.  

When  cl.  (2)  of  Art.  13  says  in  clear  and  unambiguous terms that no State shall make any law  which takes away or abridges the rights conferred by   Part III, it will not avail the State to contend either   that the clause does not embody a curtailment of the   power to legislate or that it imposes only a check but   not a prohibition. A constitutional prohibition against   a State making certain laws cannot be whittled down  by analogy or by drawing inspiration from decisions   on the provisions of other Constitutions; nor can we  appreciate the argument that the words "any law" in  the second line of Art. 13(2) posits the survival of the   law made in the teeth of such prohibition. It is said   that  a law can come into existence  only  when it  is   made and therefore any law made in contravention of   that clause presupposes that the law made is  not a   nullity. This argument may be subtle but is not sound.   The words 'any law" in that clause can only mean an  Act  passed  or  made  factually,  notwithstanding  the   prohibition. The result of such contravention is stated   in  that  clause.  A  plain  reading  of  the  clause  indicates,  without  any  reasonable  doubt,  that  the  prohibition goes to the root of the matter and limits   the  State's  power  to  make law ;  the  law made in   spite of the prohibition is  a still born law.”

                                            (Emphasis  added)

(See also:  Mohd. Shaukat Hussain Khan v. State of A.P. AIR 1974  SC 1480).       

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25. In  Behram  Khurshid  Pesikaka  v.  State  of  Bombay AIR  

1955 SC 123; and Mahendra Lal Jaini v. State of Uttar Pradesh &  

Ors. AIR 1963 SC 1019, this Court held that in case a statute violates  

any of the fundamental rights enshrined in Part III of the Constitution of  

India,  such statute  remains still-born;  void;  ineffectual  and nugatory,  

without  having  legal  force  and  effect  in  view  of  the  provisions  of  

Article  13(2) of the Constitution.   The effect  of the declaration of a  

statute  as  unconstitutional  amounts  to  as  if  it  has  never  been  in  

existence.  Rights cannot be built up under it; contracts which depend  

upon it for their consideration are void.  The unconstitutional act is not  

the law.  It confers no right and imposes no duties.  More so, it does not  

uphold any protection nor create any office.  In legal contemplation it  

remains not operative as it has never been passed. In case the statute  

had been declared unconstitutional,  the effect being just to ignore or  

disregard.   

IV. DOCTRINE OF LIFTING THE VEIL:

26. However, in order to test the constitutional validity of the Act,  

where it is alleged that the statute violates the fundamental rights, it is  

necessary to ascertain its true nature and character and the impact of  

the Act.  Thus, courts may examine with some strictness the substance  

3

of the legislation and for that purpose, the court has to look behind the  

form and appearance thereof to discover the true character and nature  

of the legislation.  Its purport and intent have to be determined. In order  

to do so it is permissible in law to take into consideration all factors  

such as history of the legislation, the purpose thereof, the surrounding  

circumstances  and  conditions,  the  mischief  which  it  intended  to  

suppress, the remedy for the disease which the legislature resolved to  

cure and the true reason for the remedy. (Vide: Dwarkadas Shrinivas  

v. The Sholapur Spinning & Weaving Co. Ltd. & Ors., AIR 1954  

SC  119;  Mahant  Moti  Das  v.  S.P.  Sahi,  The  Special  Officer  in  

charge of  Hindu Religious Trust  & Ors.,  AIR 1959 SC 942; and  

Hamdard Dawakhana & Anr. v. Union of India & Ors., AIR 1960  

SC 554).

V. INTERFERENCE BY COURT WITH EXPERT BODY’S  OPINION:  

27. Undoubtedly, the Court lacks expertise especially in disputes  

relating to  policies  of  pure  academic  educational  matters.  Therefore,  

generally  it  should  abide  by  the  opinion  of  the  Expert  Body.   The  

Constitution Bench of this Court in The University of Mysore & Anr.  

v. C.D. Govinda Rao & Anr., AIR 1965 SC 491 held that “normally  

the courts should be slow to interfere with the opinions expressed by the  

3

experts”. It would normally be wise and safe for the courts to leave such  

decisions to experts who are more familiar with the problems they face  

than  the  courts  generally  can  be.  This  view  has  consistently  been  

reiterated by this Court in Km. Neelima Misra v. Dr. Harinder Kaur  

Paintal  &  Ors., AIR  1990  SC  1402;  The Secretary  &  Curator,  

Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity &  

Ors., AIR 2010 SC 1285; Dr. Basavaiah v. Dr. H.L. Ramesh & Ors.,  

(2010) 8 SCC 372; and State of H.P. & Ors. v. H.P. Nizi Vyavsayik  

Prishikshan Kendra Sangh, (2011) 6 SCC 597.   

VI. WHAT  CANNOT  BE  DONE  DIRECTLY-CANNOT  BE  DONE INDIRECTLY:

28. It  is  a  settled proposition of  law that  what  cannot  be  done  

directly,  is  not  permissible  to  be  done  obliquely,  meaning  thereby,  

whatever is prohibited by law to be done, cannot legally be effected by  

an  indirect  and  circuitous  contrivance  on  the  principle  of  “quando  

aliquid prohibetur, prohibetur at omne per quod devenitur ad illud.”  

An  authority  cannot  be  permitted  to  evade  a  law  by  “shift  or  

contrivance”. (See:  Jagir Singh v. Ranbir Singh, AIR 1979 SC 381;  

M.C. Mehta v. Kamal Nath & Ors., AIR 2000 SC 1997; and  Sant  

3

Lal Gupta & Ors. v. Modern Co-operative Group Housing Society  

Ltd. & Ors., JT 2010 (11) SC 273).  

VII. CONDITIONAL LEGISLATION:

29. As the legislature cannot carry out each and every function by  

itself,  it  may be  necessary  to  delegate  its  power  for  certain  limited  

purposes in favour of the executive. Delegating such powers itself is a  

legislative function.  Such delegation of power, however, cannot be  

wide, uncanalised or unguided. The legislature while delegating such  

power is  required to lay down the criteria  or standard so as to  

enable the delegatee to act within the framework of the statute. The  

principle on which the power of the legislature is to be exercised is  

required  to  be  disclosed.  It  is  also  trite  that  essential  legislative  

functions cannot be delegated.       

Delegation  cannot  be  extended  to  “repealing  or  

altering in essential particulars of laws which are already in force in the  

area in question”. (Vide:  re: Article 143, Constitution of India and  

Delhi Laws Act (1912) etc., AIR 1951 SC 332).

30. The legislature while delegating such powers has to specify  

that  on  certain  data  or  facts  being  found  and  ascertained  by  an  

3

executive authority, the operation of the Act can be extended to certain  

areas  or  may be brought  into  force on such determination which is  

described  as  conditional  legislation.  While  doing  so,  the  legislature  

must retain in its own hands the essential legislative functions and what  

can be delegated is  the task of subordinate legislation necessary for  

implementing  the  purpose  and  object   of   the   Act.   Where  the  

legislative policy is enunciated with sufficient clearness or a standard is  

laid down, the courts should not interfere.  What guidance should be  

given and to what extent and whether guidance has been given in a  

particular case at all depends on consideration of the provisions of the  

particular Act with which the Court has to deal including its preamble.  

(See: In re: Delhi Laws Act (supra); The Municipal Corporation of  

Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi & Anr.,  

AIR 1968 SC 1232).

31. In  Rajnarain  Singh  v.  Chairman,  Patna  Administration  

Committee, Patna & Anr., AIR 1954 SC 569, a Constitution Bench  

of this Court explained the ratio of the judgment in re: Delhi Laws Act  

(supra) observing as under:  

“In  our  opinion,  the  majority  view  was  that  an  executive  authority  can  be  authorised  to  modify  either   

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existing  or  future  laws  but  not  any  essential  feature.   Exactly,  what  constitutes  an  essential  feature  cannot  be  enunciated in general terms, and there was some divergence   of view about this in the former case, but this much is clear   from the opinions set out above: it cannot include a change   of policy.”                                                       (Emphasis  added)

32. In  Bangalore  Woollen,  Cotton  and  Silk  Mills  Co.  Ltd.,  

Bangalore  v.  Corporation  of  the  City  of  Bangalore  by  its  

Commissioner, Bangalore City, AIR 1962 SC 1263, this  Court dealt  

with a similar issue in a case where the legislature had conferred power  

upon the Municipal Corporation  to determine on what other goods and  

under  what  conditions  the  tax  should  be  levied.  In  that  case  the  

legislature had prepared a list of goods which could be subjected to tax  

and the rate had also been fixed in addition thereto. The powers had  

been  conferred  on  the  Municipal  Corporation.  This  Court  therefore  

came to the conclusion that it was not a case of excessive delegation  

which may be held to be bad in view of the judgment in  Hamdard  

Dawakhana v. Union of India, AIR 1960 SC 554, rather it was a case  

of conditional legislation.    

33. In  Basant  Kumar  Sarkar  &  Ors.  v.  The  Eagle  Rolling  

Mills Ltd. & Ors., AIR 1964 SC 1260,  this Court examined the issue  

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of  extension  of   Employees  State  Insurance  Act,  i.e.  temporal  

application of employees insurance legislation and held that it was a  

case of conditional legislation and not of excessive delegation because  

there was no element of delegation therein  at all.  The Court held as  

under:  

“Thus, it is clear that when extending the  Act to different establishments, the relevant Government is   given  the  power  to  constitute  a  Corporation  for  the  administration of the scheme of Employees State Insurance.   The course adopted by modern legislatures in dealing with  welfare  scheme  has  uniformly  conformed  to  the  same  pattern. The legislature evolves a scheme of socio-economic   welfare,  makes  elaborate  provisions  in  respect  of  it  and   leaves it to the Government concerned to decide when, how  and in what manner the scheme should be introduced. That,   in our opinion, cannot amount to excessive delegation.”  

34. In view of the above, the law stands crystallised to the effect  

that in case the legislature wants to delegate its power in respect of the  

implementation  of  the  law enacted  by  it,  it  must  provide  sufficient  

guidelines,  conditions,  on  fulfillment  of  which,  the  Act  would  be  

enforced by the delegatee. Conferring unfettered, uncanalised powers  

without  laying  down  certain  norms  for  enforcement  of  the  Act  

tantamounts to abdication of legislative power by the legislature which  

is not permissible in law. More so, where the Act has already come into  

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force,  such  a  power  cannot  be  exercised  just  to  nullify  its  

commencement thereof.  

VIII. LEGISLATIVE ARBITRARINESS:

35. In Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.,  

AIR 1981 SC 487, this Court held that Article 14 strikes at  arbitrariness  

because an action that is arbitrary, must necessarily involve negation of  

equality.   Whenever  therefore,  there  is  arbitrariness  in  State  action,  

whether  it  be  of  the  legislature or  of  the  executive,  Article  14  

immediately  springs  into  action  and  strikes  down such  State  action.  

(See also : E.P. Royappa v. State of Tamil Nadu & Anr., AIR 1974  

SC 555; and  Smt. Meneka Gandhi v. Union of India & Anr. AIR  

1978 SC 597).

36.   In  M/s. Sharma  Transport  rep.  by  D.P.  Sharma  v.  

Government of A.P. & Ors. AIR 2002 SC 322,  this Court defined  

arbitrariness observing that party has to satisfy that the action was not  

reasonable and was manifestly arbitrary.  The expression ‘arbitrarily’  

means;  act  done  in  an  unreasonable  manner,  as  fixed  or  done  

capriciously or at pleasure without adequate determining principle, not  

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founded  in  the  nature  of  things,  non-rational,  not  done  or  acting  

according to reason or judgment, depending on the will alone.

37.       In Bombay Dyeing & Manufacturing Co. Ltd. (3) v. Bombay  

Environmental Action Group & Ors. AIR 2006 SC 1489,  this Court  

held that arbitrariness on the part of the legislature so as to make the  

legislation violative of Article 14 of the Constitution should ordinarily  

be manifest arbitrariness.

38. In  cases  of  Bidhannagar  (Salt  Lake)  Welfare  Assn.  v.  

Central Valuation Board & Ors. AIR 2007 SC 2276;  and  Grand  

Kakatiya  Sheraton  Hotel  and  Towers  Employees  and  Workers  

Union v. Srinivasa Resorts Limited & Ors. AIR 2009 SC 2337, this  

Court held that a law cannot be declared ultra vires on the ground of  

hardship but can be done so on the ground of total unreasonableness.  

The  legislation  can  be  questioned  as  arbitrary  and ultra  vires  under  

Article 14.  However, to declare an Act ultra vires under Article14, the  

Court must be satisfied in respect of substantive unreasonableness in  

the statute itself.

IX. AMENDING ACT-IF STRUCK DOWN-WHETHER OLD  LAW WILL REVIVE:

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39. This  Court  in Bhagat Ram Sharma v.  Union of  India &  

Ors., AIR 1988 SC 740 explained the distinction between repeal and  

amendment observing that amendment includes abrogation or deletion  

of a provision in an existing statute. If the amendment of an existing  

law is small, the Act prefaces to amend; if it is extensive, it repeals and  

re-enacts it.

40. In  State  of  Rajasthan v.  Mangilal  Pindwal AIR 1996 SC  

2181, this Court held that when the statute is amended, the process of  

substitution of statutory provisions consists of two parts:-

(i) the old rule is made to cease to exist;

(ii) the new rule is brought into existence in its place.

In other words, the substitution of a provision results in repeal of the  

earlier provision and its replacement by the new provision. (See also:  

Koteswar Vittal Kamath v. K.Rangappa Baliga & Co. AIR 1969 SC  

504).

41. In Firm A.T.B. Mehtab Majid and Co. v. State of Madras  

& Anr., AIR 1963 SC 928, this Court held:  

“22. It is a settled legal proposition that whenever   an Act is repealed, it must be considered as if it   had  never  existed.  The  object  of  repeal  is  to  obliterate the Act from the statutory books, except   

4

for certain purposes as provided under Section 6   of the General Clauses Act, 1897. Repeal is not a   matter of mere form but is of substance. Therefore,   on  repeal,  the  earlier  provisions  stand  obliterated/abrogated/wiped  out  wholly  i.e.  pro  tanto repeal”

42. Thus,  undoubtedly,  submission  made  by  learned  senior  

counsel on behalf of the respondents that once the Act stands repealed  

and the amending Act is struck down by the Court being invalid and  

ultra vires/unconstitutional on the ground of legislative incompetence,  

the repealed Act will automatically revive is preponderous and needs  

no further consideration.   

This  very  Bench  in  State  of Uttar  Pradesh  &  Ors.  v.  

Hirendra Pal Singh & Ors., (2011) 5 SCC 305, after placing reliance  

upon a large number of earlier judgments particularly  in  Ameer-un-

Nissa Begum v. Mahboob Begum & Ors.,  AIR 1955 SC 352;  B.N.  

Tewari v. Union of India & Ors., AIR 1965 SC 1430; India Tobacco  

Co. Ltd. v.  CTO, Bhavanipore & Ors.,  AIR 1975 SC 155;  Indian  

Express  Newspapers  (Bombay)  Private  Ltd.  & Ors. v.  Union of  

India & Ors., AIR 1986 SC 515;  West U.P. Sugar Mills Assn. v.  

State of U.P.,  AIR 2002 SC 948; Zile Singh v.  State of Haryana &  

Ors., (2004) 8 SCC 1;  State of Kerala v.  Peoples Union for Civil  

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Liberties, Kerala State Unit & Ors., (2009) 8 SCC 46;   and  Firm  

A.T.B. Mehtab Majid and Co. (supra)  reached the same conclusion.

43. There is another limb of this legal proposition, that is, where  

the Act is struck down by the Court being invalid, on the ground of  

arbitrariness in view of the provisions of Article 14 of the Constitution  

or  being violative of  fundamental  rights  enshrined in Part-III  of  the  

Constitution,  such  Act  can  be  described  as  void  ab-initio meaning  

thereby unconstitutional, still born or having no existence at all.   In  

such  a  situation,  the  Act  which  stood  repealed,  stands  revived  

automatically.  (See:  Behram  Khurshid  Pesikaka  (Supra);  and  

Mahendra Lal Jaini (Supra)

44. In Harbilas Rai Bansal v. State of Punjab & Anr. AIR 1996  

SC 857, while dealing with the similar situation, this Court struck down  

the Amending Act  being violative  of  Article  14 of  the Constitution.  

The Court further directed as under:

“We  declare  the  abovesaid  provision  of  the  amendment  as  constitutionally  invalid  and  as  a  consequence restore the original provisions of the  Act which  were  operating  before  coming  into   force of the Amendment Act.”           (Emphasis  added)    

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45. Thus, the law on the issues stands crystallised that in case the  

Amending  Act  is  struck  down by  the  court  for  want  of  legislative  

competence or  is violative of any of the fundamental rights enshrined  

in Part III of the Constitution, it would be un-enforceable in view of the  

provision  under  Article  13(2)  of  the  Constitution  and  in  such  

circumstances  the  old  Act  would  revive,  but  not  otherwise.  This  

proposition of law is,  however,  not  applicable so far as  subordinate  

legislation is concerned.      

X. WHETHER  LEGISLATURE  CAN  OVERRULE  THE  JUDGMENT OF THE COURT:

46. A Constitution Bench of this Court in  Shri Prithvi Cotton  

Mills  Ltd.  & Anr. v.  Broach Borough Municipality & Ors., AIR  

1970 SC 192,  examined the issue and held as under:  

“…..When a legislature sets out to validate a tax   declared by a court to be illegally collected under an   ineffective  or  an  invalid  law,  the  cause  for   ineffectiveness or invalidity must be removed before  validation can be said to take place effectively. The  most  important  condition,  of  course,  is  that  the   legislature must possess the power to impose the tax,   for,  if  it  does  not,  the  action  must  ever  remain  ineffective  and  illegal.  Granted  legislative   competence, it is not sufficient to declare merely that   

4

the  decision  of  the  Court  shall  not  bind for  that  it   tantamounts to reversing the decision in exercise of   judicial power which the legislature does not possess   or  exercise.  A  court's  decision  must  always  bind  unless  the  conditions  on  which  it  is  based  are  so   fundamentally  altered  that  the  decision  could  not   have been given in the altered circumstances…..”

47.    In S.R. Bhagwat & Ors. v. State of Mysore,  AIR 1996 SC 188,  

a similar  issue  was  considered  by  this  Court  while  considering  the  

provisions of Karnataka State Civil Services (Regulation of Promotion,  

Pay & Pension)  Act,  1973.  In  that  case,  the  provisions  of  that  Act  

disentitled deemed promotees to arrears for the period prior to actual  

promotion.  These  provisions  were  held  to  be  not  applicable  where  

directions of the competent court against the State had become final.  

The Court observed that any action to take away the power of  judicial  

decision shall  be ultra vires the powers of the State legislature as it  

encroached  upon  judicial  review  and  tried  to  overrule  the  judicial  

decision  binding  between  the  parties.   The  binding  judicial  

pronouncement between the parties  cannot be made ineffective with  

the  aid  of  any  legislative  power  by  enacting  a  provision  which  in  

substance  overrules  such  a  judgment  and  is  not  in  the  realm  of  a  

legislative enactment  which displaces  the basis  or  foundation of the  

judgment and uniformly applies to a class of persons concerned with  

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the entire subject sought to be covered by such an enactment having  

retrospective effect.  

48. While deciding the said case, this Court placed reliance on its  

earlier  judgments  in  Re,  Cauvery  Water  Disputes  Tribunal, AIR  

1992 SC 522; and  G.C. Kanungo v. State of Orissa, AIR 1995 SC  

1655.   In the former case, the Constitution Bench of this Court held  

that  the legislature could change the basis  on which a decision was  

given by the Court and, thus, change the law in general, which would  

affect a class of persons and events at large.  However, it cannot set  

aside  an  individual  decision  inter-parties  and affect  their  rights  and  

liabilities alone.  Such an act on the part of the legislature amounts to  

exercising  the  judicial  power  of  the  State  and  functioning  as  an  

appellate court or tribunal.  In the latter case, a similar view had been  

reiterated observing that the award of the tribunal could not be nullified  

by an Amendment Act having recourse to the legislative power as it  

tantamounts  to  nothing  else,  but  “the  abuse  of  this  power  of  

legislature.”

49. In Madan Mohan Pathak & Anr. v. Union of India & Ors.,  

AIR 1978 SC 803,  a  seven-Judge Bench of this Court considered a  

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similar issue and held that the act of legislature cannot annul a final  

judgment  giving effect to rights of any party.  A declarative judgment  

holding  an  imposition  of  tax  invalid  can  be  superseded  by  a  re-

validation  statute.  But  where  the  factual  or  legal  situation  is  

retrospectively  altered  by  an  act  of  legislature,  the  judgment  stands,  

unless reversed by an appeal or review. Bringing a legislation in order  

to nullify the judgment of a competent court would amount to trenching  

upon the judicial power and no legislation is permissible which is meant  

to set aside the result of the mandamus issued by a court even though,  

the amending statute may not mention such an objection.  The rights  

embodied in a  judgment  could not  be taken away by the legislature  

indirectly.  

A similar view has been reiterated in K. Sankaran Nair (Dead)  

through LRs. v. Devaki Amma Malathy Amma & Ors., (1996) 11  

SCC 428.  

50. The legislature cannot by bare declaration, without anything  

more,  directly  overrule,  reverse  or  override  a  judicial  decision.  

However it can, in exercise of the plenary powers conferred upon it by  

Articles  245 and 246 of  the  Constitution,  render  a  judicial  decision  

4

ineffective by enacting a valid law fundamentally altering or changing  

the conditions on which such a decision is based.  

(Vide: A. Manjula Bhashini & Ors. v. Managing Director, Andhra  Pradesh Women’s Cooperative Finance Corporation Ltd. & Anr.,  (2009) 8 SCC 431).

51. In view of the above, the law on the issue can be summarised  

to the effect that a judicial pronouncement of a competent court cannot  

be annulled by the legislature in exercise of its legislative powers  for  

any reason whatsoever.   The legislature, in order to revalidate the law,  

can re-frame the conditions existing prior to the judgment on the basis  

of which certain statutory provisions had been declared ultra vires and  

unconstitutional.  

XI. READING  OF  THE  STATEMENT  OF  OBJECTS  AND  REASONS: WHILE INTERPRETING THE STATUTORY  PROVISIONS:  

52.  The Statement of Objects and Reasons appended to the Bill is not  

admissible as an aid to the construction of the Act to be passed, but it  

can be used for limited purpose for ascertaining the conditions which  

prevailed at that time which necessitated the making of  the law, and  

the extent  and urgency of  the evil,  which it  sought  to  remedy.  The  

Statement of Objects and Reasons may be relevant to find out what is  

the  objective of  any given statute  passed by the  legislature.  It  may  

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provide  for  the  reasons  which  induced  the  legislature  to  enact  the  

statute. “For the purpose of  deciphering the objects and purport of  

the Act, the court can look to the Statement of Objects and Reasons  

thereof”.   (Vide:  Kavalappara  Kottarathil  Kochuni  @  Moopil  

Nayar v. The States of Madras and Kerala & Ors., AIR 1960 SC  

1080;  and  Tata Power Company Ltd. v. Reliance Energy Ltd. &  

Ors., (2009) 16 SCC 659).   

53.  In A. Manjula Bhashini & Ors. (Supra), this Court held as under:  

“The  proposition  which  can  be  culled  out  from  the   aforementioned judgments is that although the Statement of   Objects  and  Reasons  contained  in  the  Bill  leading  to   enactment  of  the  particular  Act  cannot  be made the  sole   basis  for  construing the  provisions  contained therein,  the   same can be referred to for understanding the background,   the antecedent state of affairs and the mischief sought to be   remedied  by  the  statute.  The  Statement  of  Objects  and  Reasons  can  also  be  looked  into  as  an  external  aid  for  appreciating the true intent  of  the legislature and/or the  object sought to be achieved by enactment of the particular   Act or for judging reasonableness of the classification made   by such Act.” (Emphasis added)

54. Thus,  in  view of  the  above,  the  Statement  of  Objects  and  

Reasons  of  any enactment  spells  out  the  core  reason  for  which  the  

enactment is brought and it can be looked into for appreciating the true  

intent of the legislature or to find out the object sought to be achieved  

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by  enactment  of  the  particular  Act  or  even  for  judging  the  

reasonableness of the classifications made by such Act.  

CASE ON MERITS:  

55. The instant case requires to be examined in the light of the  

aforesaid settled legal propositions, though it may not be necessary to  

deal with all these issues in great detail as the High Court has already  

dealt with the same elaborately.    

56. In the instant case, as the Expert Committee had submitted a  

report and most of the members had given their opinion on different  

issues and as we have also examined the reports,  it is evident from the  

same  that  each  member  had  pointed  out  certain  defects  in  the  

curriculum as well as  in the text books etc.  There was no unanimity  

on  any  particular  issue,  as  each  member  has  expressed  a  different  

opinion on different issues/subjects.

57. The counter affidavit dated 7.6.2011 was filed before the High  

Court by Ms. D. Sabitha, the Secretary to the Government Education  

Department on behalf of all the respondents therein.  In reply to the  

Writ Petition she stated as under:

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“I. Further the prayer for an issuance of writ of   declaration  declaring  that  the  decision  of  the  Cabinet dated 22.5.2011 by the Government of   Tamil Nadu to withhold the implementation of   the  Tamil  Nadu  Uniform  System  of  School   Education Act, 2010 for the academic year 2011- 12 as published vide News Release No. 289 dt.   22.5.2011 as  null and void is not sustainable in   law for the sole reason that the policy decision   taken  by  the  Cabinet  would  not  be  generally   subject to judicial review. It is further submitted   that the decision taken by the Cabinet to review   the  implementation  of  the  Uniform  System  of   School Education for Standards I to X is purely in   the interest of students, parents and public which  is within the domain of the popular Government..

II.  Further the averment that text books printed  would  be  wasted  and  there  would  be  a  loss   caused to the tune of 200 crore rupees seems to   have  been  made  without  understanding  the   implications  that  could  be  created  due  to  the   implementation  of  the  illegal  policy  formulated  by the erstwhile Government.  The Government   has a mandate to ensure the quality of education  and welfare of the students.  It is with this intent   the present policy is being formulated……

III. The State, therefore, proposes to appoint   a high powered committee consisting of experts   in the field to undertake a detailed study  of the  more  appropriate  system  to  be  adopted  for  ensuring  the  improvement  of  quality  of   education and social justice by providing a level   playing field to all sections of society.

IV.        At this juncture, it is pointed out that the   books  that  have  been  printed  already  are  substandard  and  wanting  in  quality and  if   followed,  would  lead  to  deterioration  of   

5

academic  Standards  of  school  students  and  therefore the Cabinet has rightly taken a policy   decision after thorough deliberation  to stall the  implementation  of  the  Uniform  System  of   School Education Act,  2010 as it  suffers  from  illegality, irrationality and unconstitutionality…. ”      (Emphasis added)

  On amendment of the writ petitions, another counter affidavit  

was filed by Ms. D. Sabitha, the same officer, wherein she stated on  

oath, inter-alia, as under:  

“I. This being so, the Government has taken   a  decision  to  stall  the  implementation  of  the   policy of the previous government that is devoid  of  any  legal  sanction and  has  constituted  a  committee  to  formulate  an appropriate  solution  in order to redress the complications created due   to the implementation of the illegal policy.

II…….In the Cabinet meeting held on 22.5.2011,  it  was  initially  decided  to  do  away  with  the  uniform  Education  system.   Since  the  schools   were reopening on 1st June, 2011, orders had to   be  issued  for  printing  of  textbooks.   It  is   submitted  that  the  advertisement  for  inviting   tenders  for  printing  textbooks  was  issued  on  23.5.2011.”

(Emphasis added)

58. The High Court, after taking note of the counter affidavit filed  

by the present appellants labeling the Act 2010 as  illegal,  irrational  

and  unconstitutional, after  it  had   already  undergone  an  intense  

judicial  scrutiny  and  held  to  be  Constitutionally  valid  by  the  High  

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Court vide judgment and order dated 30.4.2010 and by this Court vide  

judgment  and  order  dated  10.9.2010,  the  question  that   arises  for  

consideration is  as to whether it was permissible for the Secretary of  

the  Education  Department  to  label  the  Act  as  illegal  and  

unconstitutional.  Does  such  a  conduct  amount  to  sitting  in  appeal  

against the judgments of the High Court as well as of this Court or does  

it not amount to an attempt to take away the effect of the judgments of  

the High Court as well of this Court ?

59. The High Court has taken note of these pleadings taken by the  

State authorities :  

“From a perusal of the counter affidavit filed by  the Secretary, School Education Department, it is   manifestly clear that the Government has taken the   consistent stand that the policy formulated by the  previous  Government  by  implementing  the   Uniform Syllabus System was illegal and that the  amount  of  Rs.  200 crores  spent  for  printing the   textbooks under the new syllabus was because of   the wrong policy…...”  (Emphasis added)

The report  submitted  by  the  Expert  Committee,  in  

fact,  did not  contain  any collective opinion.   All  the members have  

expressed their different views and most of the members had approved  

the contents of the text books, in general, pointing out certain defects  

which could be cured by issuing corrigendums or replacements etc.       

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60. Section 18 of the Act 2010 enables the State Government to  

remove  difficulties,  if  any,  in  implementation  of  the  said  Act.  The  

provisions thereof read as under:

“If  any  difficulty  arises  in  giving  effect  to  the   provisions  of  this  Act,  the  Government  may,  by  order  published  in  the  Tamil  Nadu  Government   Gazette,  make  such  provisions,  not  inconsistent   with the provisions of this Act as appears to them  to  be  necessary  or  expedient  for  removing  the   difficulty;…”

Therefore,  the  amendment  itself  is  totally  

unwarranted.  If the State Government was facing any difficulty, the  

same could have been removed by issuing a Government order under  

Section 18 of the Act which conferred all residuary powers on it.  

  The nature of the defect as canvassed by the State counsel is  

reflected  in  the  pleadings  that  indicates  an  undesirable  inclusion  of  

certain chapters that do not subserve the purpose of a uniform standard  

and multicultural  educational  pattern.   The contention appears  to be  

that  such  material  may  damagingly  divert  the  mind  of  the  young  

students towards a motivated attempt of individualistic glorification.  In  

the  opinion  of  the  court,  if  such  material  does  create  any  adverse  

impact or is otherwise targeted towards unwanted propaganda without  

any  contribution  towards  the  educational  standard  sought  to  be  

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achieved,  then  such  material  upon  a  thorough  investigation  and  

deliberation by the Expert Committee could be deleted with the aid of  

Section 18 of the Act 2010.  It appears that the State Government while  

introducing  the  Amendment  Act  2011  did  not  appropriately  focus  

attention on the provision of Section 18 quoted hereinabove that are  

inclusive  of  all  powers  that  may  be  required  to  remove  such  

difficulties.  Had the said provision been carefully noted, there would  

have been no occasion to suspend the implementation of the Act 2010.  

What could have been done with the help of a needle was unnecessarily  

attempted by wielding a sword from the blunt side. Not only this the  

said provision was not even pointed out by the State machinery before  

the High Court nor did its legal infantry choose to examine the same.  

Even before us the learned counsel were unable to successfully counter  

the availability of such powers with the State Government.  

In  addition  to  that,  needless  to  re-emphasize,  the  

High Court while dealing with the validity of the provisions of the Act  

2010, had already conceded liberty to the State Government to remove  

defects and had on the other hand struck down the offending provisions  

in Section 14 thereof empowering the State Government to compel the  

Education Board to be bound on questions of policy. Thus, the State  

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Government was left with sufficient powers to deal with the nature of  

defects appropriately under the said judgment with a statutory power  

available for that purpose under Section 18 of the Act 2010.  

61. It may be relevant to point out here that Statement of Objects  

and Reasons given to the Amendment Act 2011 reveal a very sorry  

state of affairs and point out towards the intention of the legislature not  

to  enforce  the  Act  2010  at  all.   Relevant  part  of  clause  9  of  the  

Statement of Objects and Reasons of the Amendment Act 2011 reads  

as under:  

“…the  State  proposes  to  appoint  a  high  powered   committee consisting of experts in the field to undertake a  detailed  study  of  the  more  appropriate  system  to  be  adopted  for  ensuring  the  improvement  of  quality  and   education and social justice by providing a level playing   field to all sections of society. ..” (Emphasis added)

The  aforesaid  quoted  part  of  the  same  makes  it  clear  that  the  

Government intended to introduce a more appropriate system to ensure  

the improvement of quality education, meaning thereby, that the State  

has no intention to enforce the uniform education system as provided  

under the Act 2010.

62.     The relevant part of  Section 3 of the Act 2010 reads as under:  

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3(1)  Every school in the State shall follow the common syllabus  and text books as may be specified by the Board for each subject –

(a) in Standards I and VI, commencing from the academic year  2010-2011;

(b) in  Standards  II  to  V  and  Standards  VII  to  X  from  the  academic year 2011-2012.

(2) Subject to the provisions of sub-section (1), every school in  the State shall –

(a) follow the norms fixed by the Board for giving instruction in  each subject;  

(b) follow  the  norms  for  conducting  examination  as  may  be  specified  by the Board.  

63.         After  the Amendment Act 2011, Section 3  reads as under:  

“3. Schools to follow common syllabus –

(1) Every  school  in  the  State  shall  follow  the  common  syllabus as may be specified by the Board for each subject  in  Standards 1 to X from such academic year as may  be  notified  by  the  Government in  the  Tamil  Nadu  Government  Gazette.   The  Government  may  specify  different academic years for different Standards.  

(2) Until  notification  under  sub-section  (1)  is  issued,  the  syllabus and text books for every school in the State shall  be as follows:

(a) in Standards I and VI, the system as prevailing prior to  academic year 2010-11 shall continue; and  

(b) in Standards II to V and VII to X, the existing system  shall continue,”    (Emphasis added)

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64.   The legislature in its wisdom had enforced the Act 2010 providing  

for common syllabus and text books for Standards I and VI from the  

academic year 2010-2011 and for Standards II to V and VII to X from  

the academic year 2011-2012,  the validity of this law has been upheld  

by the High Court vide judgment and order dated 30.4.2010 and by this  

Court vide order dated 10.9.2010.  Certain directions had been issued  

by  the  High  Court  which  could  be  carried  out  easily  by  the  State  

exercising its administrative powers without resorting to any legislative  

function. By the Amendment Act, even the application of Act 2010, so  

far  as  Standards  I  and  VI  are  concerned,  has  also  been  withdrawn  

without realising that students who have studied in academic year 2010-

11 would have difficulty in the next higher class if they are given a  

different syllabus and different kind of text books.  The Amendment  

Act  2011 provided that the students in Standards I and VI would also  

revert back to the old system which had already elapsed.   

65.   The Amendment Act 2011, in fact, nullified the earlier judgment  

of the High Court dated 30.4.2010,  duly approved by the order of this  

Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as  

unfettered  and  uncanalised  power  has  been  bestowed  upon  the  

Government to notify the commencement  of  the uniform education  

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system.  State Government may submit only to the extent that the High  

Court itself had given option to the State to implement the Common  

Education System after ensuring compliance of directions issued by the  

High Court itself.  However, no such liberty was available to the State  

so far as Standards  I and VI  are concerned.     

66. It  is  also  evident  from  the  record  that  after  the  new  

Government was sworn in on 16.5.2011, tenders were invited to publish  

books being taught under the old system on 21.5.2011 and subsequent  

thereto,  it  was  decided  in  the  Cabinet  meeting  on  22.5.2011  not  to  

implement the uniform education system.  Whole exercise of amending  

the Act 2010 was carried out most hurriedly.  However, proceeding in  

haste itself cannot be a ground of challenge to the validity of a Statute  

though proceeding in haste amounts to arbitrariness and in such a fact-

situation the administrative order  becomes liable  to be quashed.  The  

facts  mentioned  hereinabove reveal  that  tenders  had been invited  on  

21.5.2011 for publishing the text books, taught under the old system  

even prior to Cabinet meeting dated 22.5.2011.  Thus, a decision had  

already been taken not to implement the Common Education System.  

67. If one crore  twenty lacs students are now to revert back to the  

multiple syllabus with the syllabus and textbooks applicable prior to  

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2010 after the academic term of  2011-12 has begun, they would be  

utterly confused and would be put to enormous stress. Students can not  

be put to so much strain and stress unnecessarily. The entire exercise by  

the Government is therefore arbitrary, discriminatory and oppressive to  

students, teachers and parents.  

        The State Government should have acted bearing in mind  

that “destiny of a nation rests with its youths”.  Personality of a child is  

developed at the time of basic education during his formative years of  

life.   Their  career  should  not  be  left  in  dolorific  conditions  with  

uncertainty  to  such  a  great  extent.   The  younger  generation  has  to  

compete in global market.  Education is not a consumer service nor the  

educational institution can be equated with shops, therefore, “there are  

statutory  prohibitions  for  establishing  and  administering  educational  

institution  without  prior  permission  or  approval  by  the  authority  

concerned.”

Thus, the State Government could by no means be justified in  

amending the provisions of Section 3 of the Act 2010, particularly in  

such  uncertain  terms.   Undertaking  given  by  the  learned  Advocate  

General to the High Court that the Act 2010 would be implemented in  

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the academic year 2012-13, cannot be a good reason to hold the Act  

2011 valid.

68 Submissions  advanced  on  behalf  of  the  appellants  that  it  is  

within  the  exclusive  domain  of  the  legislature  to  fix  the  date  of  

commencement of an Act,  and court has no competence to interfere in  

such a matter, is totally misconceived for the reason that the legislature  

in its wisdom had fixed the dates of commencement of the Act though in  

a phased manner.   The Act commenced into force accordingly.   The  

courts  intervened  in  the  matter  in  peculiar  circumstances  and passed  

certain orders in this regard also.  The legislature could not wash off the  

effect of those judgments at  all.   The judgments cited to buttress the  

arguments, particularly in  A.K. Roy v. Union of India & Anr., AIR  

1982 SC 710; Aeltemesh Rein v. Union of India & Ors., AIR 1988 SC  

1768; Union of India v. Shree  Gajanan Maharaj Sansthan, (2002) 5  

SCC 44; and Common Cause v. Union of India & Ors., AIR 2003 SC  

4493, wherein it has been held that a writ in the nature of mandamus  

directing the Central Government to bring a statute or a provision in a  

statute into force in exercise of powers conferred by Parliament in that  

statute cannot be issued, stand distinguished.

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69. As explained hereinabove, the Amendment Act 2011, to the  

extent it applies to enforcement of Act 2010, nullified the judgment of  

the High Court dated 30.4.2010 duly approved by this Court vide order  

dated 10.9.2010.  Thus, we concur with the conclusion reached by the  

High Court in this regard.   

70. To summarise our conclusions:  

(i) The Act 2010 was enacted to enforce the uniform education  

system in the State of Tamil Nadu in order to impart  quality education  

to  all  children,  without  any  discrimination  on  the  ground  of  their  

economic, social or cultural background.

(ii) The  Act  itself  provided  for  its  commencement  giving  the  

academic years though, in phased programme i.e. for Standards I to VI  

from  the  academic  year  2010-2011;  and  for  other  Standards  from  

academic year 2011-2012, thus, enforcement was not dependent on any  

further notification.  

(iii) The  validity  of  the  Act  was  challenged  by  various  persons/  

institutions and societies, parents of the students, but mainly by private  

schools organisations,  opposing the  common education system in the  

entire State. The writ petitions were dismissed upholding the validity of  

the  Act.  However,  few  provisions,  particularly,  the  provisions  of  

Sections  11,  12  and  14  were  struck  down  by  the  High  Court  vide  

judgment  and order  dated 30.4.2010. The said judgment of the High  

Court  was  duly  approved  by  a  speaking  order  of  this  Court  dated  

10.9.2010. Certain directions had been given in the said judgment by the  

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High Court which could have been complied with by issuing executive  

directions.  Moreover,  directions  issued  by  the  High  Court  could  be  

complied  with  even  by  changing  the  Schedule  as  provided  in  the  

judgment dated 30.4.2010 itself.  

(iv) Section 18 of the Act 2010 itself enabled the Government to  

issue any executive  direction to remove any difficulty to enforce the  

statutory provisions of the Act 2010. The Act 2010  itself provided for  

an  adequate  residuary  power  with  the  government  to  remove  any  

difficulty in enforcement of the Act 2010, by issuing an administrative  

order.  

(v) Justification pleaded by the State that  Amendment  Act 2011  

was brought to avoid contempt proceedings as the directions issued by  

the High Court could not be complied with, is totally a misconceived  

idea and not worth acceptance.  

(vi) The new government took over on 16.5.2011 and immediately  

thereafter, the Government received representations from various private  

schools/organizations  on  17th/18th May,  2011  to  scrap  the  uniform  

education system. As most of  these representations were made by the  

societies/organisations who had earlier challenged the validity of the Act  

2010  and  met  their  waterloo  in  the  hierarchy  of  the  courts,  such  

representations were, in fact, not even  maintainable and, thus could  not  

have been entertained by the Government.  

(vii) Before the first Cabinet meeting of the new Government  on  

22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books  

under  the  old  education system.  It  shows that  there  had been a  pre-

determined political  decision  to  scrap  the  Act  2010.  The  Cabinet  on  

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22.5.2011  had  taken  a  decision  to  do  away  with  the  Act  2010  and  

brought the Ordinance for that purpose.   

(viii) There was no material before the Government on the basis of  

which, the decision not to implement the Act 2010 could be taken as  

admittedly  the  Expert  Committee  had  not  done  any  exercise  of  

reviewing  the syllabus and textbooks till then.  

(ix)      The validity of the said decision was challenged by parents and  

teachers  and  various  other  organisations  before  the  High  Court  and  

interim  orders  were  passed.  It  was  at  that  stage  that  the  Bill  was  

introduced  in  the  House  on  7.6.2011 and  the   Amendment  Act  was  

passed and enforced with retrospective effect i.e. from 22.5.2011,  the  

date of  the decision of the Cabinet in this regard.  

(x)      The interim orders passed by the High Court were challenged  

before this Court and the appeals were disposed of by this court vide  

judgment and order dated 14.6.2011, issuing large number of directions  

including constitution of the  Expert Committee which would find out  

ways and means to enforce the common education system.  

(xi)  The  Secretary  of  School  Education  Department  had  filed  

affidavits before the High Court as well as before this Court pointing out  

that the Amendment Act 2011 was necessary in view of the fact that the  

Act 2010 was illegal and unconstitutional.  However, the Secretary of  

School Education Department was  inadvertently made a member of the  

Expert  Committee  by  this  Court.   Though  her  inclusion  in  the  

Committee  was  totally  unwarranted particularly  in  view of her  stand  

taken before the High Court that the Act 2010 was unconstitutional and  

illegal.  

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(xii)  The Secretary, to the Govt. of Tamil Nadu School Education  

Department,  who  had  been  entrusted  the  responsibility  to  plead  on  

behalf of the State,  herself  had approved the textbooks and fixed the  

prices for those books of Standards  VIIIth,   IXth  and Xth  vide G.O.  

dated 9.5.2011.  

(xiii) The members of the Expert Committee did not reject the text  

books and syllabus in toto, however, pointed out certain discrepancies  

therein and asked for rectification/improvements  of the same.   

(xiv) The High Court as well as this Court upheld the validity of the  

Act 2010. Thus, it was not permissible for the legislature to annul the  

effect of the said judgments by the Amendment Act 2011, particularly  

so far as the Ist and VIth Standards are concerned. The list of approved  

textbooks had been published and made known to all concerned. Thus,  

the Act 2010 stood completely implemented so far these Standards were  

concerned.   

(xv) The Statement of Objects and Reasons of the Act 2011 clearly  

stipulated that legislature intended  to find out a better system of school  

education. Thus, the object has been to repeal the Act 2010.

(xvi)  The legislature is competent to enact the revalidation Act under  

certain circumstances, where the statutory provisions are struck down by  

the  court,  fundamentally  altering  the  conditions  on  which  such  a  

decision is based, but the legislature cannot enact, as has been enacted  

herein, an invalidation Act, rendering a statute nugatory.  

(xvii) The  School  Education  Department  of  Tamil  Nadu  on  

24.2.2011 called for private publishers to come out with the textbooks  

based on common education system, and submit for clearance by the  

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Department by 5.4.2011, as taken note of by the High Court in its order  

dated 10.6.2011. Thus, in such a fact-situation, it was  not permissible  

for the State to revert back to the old system at this advanced stage.  

(xviii)  Most  of  the  other  directions  given  by  the  High  Court  on  

30.4.2010, stood complied with.  The DTERT had been appointed as  

Academic Authority as required under Section 29 of the Act 2009, vide  

G.O. dated 27.7.2010.

(xix) The material  produced by the respondents before this Court  

reveal that norms had been made known and the NCF 2005 was also  

implemented by issuing Tamil Nadu Curriculum 2009.

(xx)    The issue of repugnancy of the Act 2010 with the Act 2009  

merely remains an academic issue as most of the discrepancies stood  

removed. Even if something remains to be done, it can be cured even  

now, however,  such a  minor  issue  could  not  be  a  good ground for  

putting  the  Act  2010  under  suspended  animation  for  an  indefinite  

period on uncertain terms.  

(xxi)  Undoubtedly, there had been a few instances of portraying  

the personality  by the leader  of  political  party  earlier  in  power,  i.e.  

personal glorification, self publicity and promotion of his own cult and  

philosophy,  which could build his  political  image and influence the  

young students,   particularly,  in the books of  primary classes.  Such  

objectionable material, if any, could be deleted, rather than putting the  

operation of the  Act 2010 in abeyance for indefinite period.  

(xxii)    As early as in April 2011, textbooks for  Xth  Standard were  

posted  in  the  official  website  of  School  Education  Department  and  

many students downloaded the same and started study of the same as  

the students, parents and teachers had been under the impression that  

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for  Standards II to V and VII to X, common education system would  

definitely  be implemented  from academic year 2011-12.  Such pious  

hope of so many stakeholders could not be betrayed. Rolling back the  

Act 2010 at this belated stage and withdrawal thereof even for Standard  

I and VI would be unjust, iniquitous and unfair to all concerned.    

(xxiii)    The Amendment Act 2011, in fact, has the effect of bringing  

back the effect of Section 14 of the Act 2010 which had been declared  

ultra vires by the High Court for the reason that the Board could not be  

given binding directions by the State Government.

(xxiv)      Even if a very few schools could not exercise their choice of  

multiple text books, it could not be a ground of scrapping the Act 2010.  

Steps should have been taken to remove the discrepancy.  

(xxv)   Passing the Act 2011, amounts to nullify the effect of the  

High  Court  and  this  Court’s  judgments  and  such  an  act  simply  

tantamounts to subversive of law.  

71. In view of the above,  the appeals  are devoid of  any merit.  

Facts  and circumstances  of  the  case  do  not  present  special  features  

warranting any interference by this Court.   

           The appeals are accordingly dismissed.  The appellants are  

directed to enforce the High Court judgment impugned herein within a  

period of 10 days from today.   

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         ……..……… …………J.

      (J.M.  PANCHAL)

      ………… ……………..J.

      (DEEPAK  VERMA)

      ………… ……………..J. New Delhi,        (Dr. B.S.  CHAUHAN) August 9, 2011

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