TMI Blog1974 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... e concerned in this petition mainly with Mahakoshal and Madhya Bharat regions of the State of Madhya Pradesh and we shall, therefore, so far as any references to the position obtaining prior to the reorganization of the States is concerned, confine our attention only to those two regions. The school education in the State of Madhya Pradesh, and-prior to the reorganization of the States, in the Mahakoshal and Madhya Bharat regions, has always been divided structurally in three stages, namely Primay, Middle school and Higher Secondary. Primay education consists of classes I to V, Middle School, of classes VI to VIll and Higher Secondary of classes IX to XI. Primary and Middle school education may be considered together, for barring a short period upto the enactment of the Madhya Pradesh Secondary Education Act, 1959 (hereinafter referred to as the Act of 1959), when Middle school education was clubbed together with Higher Secondary education and was treated differently from Primary education, Middle school education has always been treated on the same basis as Primary education in contrast to Higher Secondary Education. it is not necessary for the purpose of the present petition to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Madhya Pradesh Societies Act, 1959 and according to the provisions of that Act, it was to function on a no profit-no loss basis. The initial resources of the Text Books Corporation were provided by the State Government by giving a loan of ₹ 15 lacs for the purpose Of enabling it to commence its operations. The Text Books Corporation was by its very constitution controlled by the State Government and it was intended to function as an agency of the State Government. The work of printing and publishing of text books was, however not commenced immediately by the Text Books Corporation and until the end of the academic year 1970-71, the aforesaid 29 text books printed and published by the State Government continued to be prescribed and used in the Primary and Middle school classes. There was, however, a change in the course of instruction and syllabi in some of the subjects from the academic year 1971-72. The State ,Government by a notification dated 18th May, 1971 prescribed improved courses of instruction and syallabi in certain subjects to be followed from the academic year 1971-72 and directed that so far as courses ,of instruction and syallabi in the other subjects w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... syallabi in certain subjects and with regard to the rest, directed that the same courses of instruction and syallabi as also the same text books shall continue to be in use as in the academic year 1971-72. The same 28 text books, printed and published by the Text Books Corporation, revised in accordance with the new courses of instruction and syallabi where necessary continued to be prescribed as text books for the academic year 1972-73. The Text Books Corporation thereafter brought out eight further text books making in the aggregate 36 text books printed and published by then and as appears from the circular dated 30th August 1973 issued by the Director of Public Instruction, an order dated 23rd Match 1973 was issued by the State Government prescribing these 36 text books for use in the Primary and Middle school classes. This order had not been' challenged in the present petition or in the voluminous affidavits filed on behalf of the parties and it need not therefore engage our attention. The learned counsel appearing on behalf of the petitioner did make an attempt in the course of the argument to challenge the validity of this order but when we pointed out to him that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Text Books Committee were difined by s. 19 to be as follows (1) to select text books for prescribed courses of instructions and syllabi for Secondary Education; (2) to prepare a panel of expert reviewers for each of the subjects included in the secondary school education curriculum; (3) to appoint expert committees consisting of not more than three members from amongst the panel of experts to examine and submit a detailed report on the suitability of the books referred to them; (4) to invite experts to write text books and other books of study, if necessary,-- Though one of the functions entrusted to the Text Books Committee was to select text books for prescribed courses of instruction and syllabi, no power was given to the Board to prescribe the text books selected by the Text Books Committee. The Board, however, claimed to have the power to prescribe text books in languages on the ground that the power to prescribe courses of instruction and syllabi in languages carried with it by necessary implication the power to prescribe text books and on that view, the Board, on the basis of the selections made by the Text Books Committee, prescribed text books in English, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguages and so far as the other subjects were concerned, the Board merely recommended text books on some of those subjects. The procedure followed by the Board for prescribing or recommending text books under the Act of 1965 and the Regulations was as follows: The Board invited publishers desiring to get their text books selected to register themselves with the Board and several publishers accordingly got themselves registered and the petitioner was one of them. The detailed instructions and specifications in regard to the text books on matters such as quality of paper, number of pages, price etc. were laid down by the Board and the registered- publishers were invited to submit text books prepared in accordance with such instructions and specifications for selection by the Board. The registered publishers than got the text books written by authors of their choice in con- formity with the prescribed courses of instruction and syllabi and printed in accordance with the instructions and specifications given by the Board and submitted such text books to the Board for selection. The text books which were received from the registered publishers were then sent to three reviewers appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Board recommended eight text books on Chemistry. There were thus four subjects on which text books were recommended by the Board. It was not seriously disputed on behalf of the petitioner that the procedure set out above for selection of text books was substantially followed by the Board in prescribing text books on languages and recommending text books on these four subjects. None of the text books prescribed or recommended by the Board was a text book printed and published, by the petitioner. The petitioner had submitted text books on Civics, Physics and Chemistry. for selection by the Board but they were rejected by the reviewers as they were found to be below standard and were printed on poor quality paper and were also costlier than the text books submitted by other registered publishers. This was the position which obtained when the Madhya Pradesh Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973 (hereinafter referred to as the Act of 1973) was enacted by the Madhya Pradesh Legislature. This Act came into force on 23rd March, 1973 being the date appointed under sub-s. (3) of s. 1. The provisions of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iddle school education or secondary education. The State Government is also given power under s. 5 to undertake the preparation, printing or distribution of text books itself or to cause the text books to be prepared, printed or distributed through such agency as it thinks fit on such terms and conditions as may be prescribed. Section 6, provides that the text books prescribed by the State Government for any standard of secondary education shall be text books prescribed for such standard of secondary education in accordance with the syllabi and the Board shall be bound to accept the same when so prescribed by the State Government. Then follows section 7 which deals with delegation of power and the last is section 8 which confers power on the State Government to make rules for carrying out all or any of the purposes of the Act. It was common ground between the parties that no rules have so far been made by the State Government under this section. Soon after the coming into force of the Act of 1973, the Board issued a notification dated 28th March, 1973 which contained inter alia the following directions 1. The syllabus and scheme of examination for the Higher Secondary Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed by the Board or to be 'in force' immediately before the appointed day so as to qualify for being regarded as text books prescribed under s. 4, sub-s. (2) The Notification dated 28th March, 1973 undoubtedly provided that these textbooks shall be prescribed text books for the period commencing from the academic year 1973-74, but that Notification was ineffective to prescribe any text books under s. 4, sub-s. (1) because it was issued by the Board and not by the State Government which alone could prescribe text books under s. 4, sub-s. (1). C. The Board by issuing the notifications dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May, 1972 merely recommended certain text books on Civics, Economics, Physics and Chemistry. These text books were not prescribed by the Board and they were not in force' immediately before the appointed day. They could not, therefore, be regarded as text books prescribed under s. 4, sub-s. (2). Though the notification dated 28th March, 1973 was issued after the appointed day. it did not have the effect of prescribing any of these text books under s. 4, sub-s. (1), firstly, because it wa s issued by the Board and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government was not entitled to prescribe these 28 text books in exercise of its executive power under Art. 162 of the Constitution. 'The executive power of the State Government under Art. 162 extends to all matters with respect to which the State Legislature has power to make laws and since education is a subject which falls within entry I 1 of List II of the Seventh Schedule to the Constitution, the State Government could apparently in exercise of its executive power prescribe these 23 text books, provided that in doing so it did not trench on the rights of any person. It is now well settled by the decision of this Court in Rai Sahib Ram Jawaya Kapur v. State of Punjab(1) that the State Government can act in exercise of executive power in relation to any matter with respect to- which the State Legislature has power to make laws, even if there is no legislation to support such executive action, but such executive action must not infringe the rights of any person. If the executive action taken by the State Government encroaches on any private rights, it would have to be supported by legislative authority, for under the rule of law which prevails in our country every executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of recognition of a school by the Board that its primary and middle sections should be recognized by the State Government and secondly, it is only recognized schools which are eligible for grant in-aid from the State Government. Both these are highly compelling reasons. There are hardly any schools which have no Higher Secondary section and that means they must have recognition by the Board, but this they cannot have unless they are recognized by the State Government in respect of their primary and middle sections. Besides, having regard to the high costs of maintenance in running a school, it is not possible for any school to function without grant-in-aid from the State Government and in order to qualify for grant- in-aid, the school must be recognized by the State Government. Now, one of the main conditions on which recognition is granted by the State Government is that the school authorities must use as text books only those which are prescribed or authorised by the State Government. Thus, even though there is no law which confers power on the State Government to prescribe text books, the State Government can by virtue of the need of the private schools for recognition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board shall be entitled to make it a condition of recognition that the schools shall use the text books prescribed by it and no others, Even the Regulations made by the Board under s. 28 of the Act of 1965 do not make it a requirement of, recognition that only the text books prescribed by the Board shall be used by the schools. Vide Regulation 61. The only question is whether there is anything in the Act of 1965 which by necessary- implication confers power on the Board to prescribe text books. It was not seriously disputed by the learned Advocate General appearing on behalf of the respondents that the Board has no power to prescribe text books generally but his contention was that, so far as languages are concerned, the power to prescribe courses of instruction, which is admittedly vested in the Board, carries with it by necessary implication the power to prescribe text books, because courses of instruction in languages cannot, be prescribed otherwise than by reference to particular text books selected for the purpose. it was urged by the learned Advocate General that it is only through particular selected text books that courses of instruction in languages can be prescribed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... literary and other qualities of such prose passages, short stories, articles, essays and poems. Any one of these text books may be prescribed by the Board and that would be wholly different from prescribing' the course of instruction. We may illustrate our point by an example. Take a case where a play of Shakespeare is to be prescribed. There are several editions of Shakespearian plays. There is the Cambridge edition; there is the Arden edition; there is the Warwick edition and there 'are a host of other editions. The play of Shakespeare can be prescribed by referring to its title, as for example, Hamlet or King Lear. It is not necessary, in order to prescribe such play as a part of the course of instruction, that a particular edition of such play should also be prescribed as a text book. The two are entirely distinct propositions. The power to prescribe courses of instruction in languages does not require for its effectual exercise prescription of text books and the power to prescribe text books cannot be read by necessary implication in the power to prescribe courses of instruction. It is therefore, clear, and this conclusion can be disputed, that the prescription of tex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished from prescribed text books, they obviously could not be said to be ,in force' immediately before the appointed day. Section, 4, sub-s. (2) did not, therefore, apply in respect of these text books and they could not be regarded as text books prescribed under s. 4, sub-s. (2). The respondents placed strong reliance on the notification dated 28th March, 1973 but it is difficult to see how this notification can be of any help to the respondents. This notification was admittedly issued by the Board and not by the State Government and moreover it did not even purport to prescribe these text books but merely directed that these text books shall be recommended text books for the period commencing from the academic year 1973-74. It is, therefore, not possible to read this notification as representing exercise of power under s. 4, sub-s. (1) and the status of prescribed text books could not be accorded to these text books on the strength of this notification. These text books could not accordingly be regarded as prescribed text books either under sub-s. (1) or under sub-s. (2) of s. 4, and section 4, sub-s. (3) could not be invoked for contending that these text books alone should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now it is clear from paragraph 134 of the affidavit filed by Chaturvedi, Deputy Secretary to the Government of Madhya Pradesh, (1) [1962] 1 S.C.R. 422. Education Department in reply to the petition' that text books on Botany, Zoology, English, Elements of Commerce, History. 'and Geography were invited by the Board from the registered publishers and various registered publishers submitted their text books on one or more of these subjects for selection and approval by the Board. The petitioner also availed of this opportunity and submitted text books on History and Geography. The text books received from the various registered publishers were then sent to the reviewers for evaluation, there being a different set of expert reviewers for each subject, and on receipt of the report of the reviewers, these text books, at any rate most of them chosen in the order of merit given by the reviewers, were placed before the appropriate Committee of Courses along with the report of the reviewers. The appropriate Committee of Courses after scrutinising the text books placed before it and considering the evaluation made by the reviewers, submitted its recommendations to the Board and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Sub-s. (1) of s. 15 does not help, for it merely says that it shall be the duty of the Chairman to see that the Act and the Regulations are faithfully observed and he shall have all powers necessary for that purpose. Sub-s. (2) of s. 15 has also no relevance in this connection. Then there is sub-s. (3) of s. 15 which provides that in any emergency arising out of the business of the Board, which in the opinion of the Chairman requires that immediate action should be taken, the Chairman shall take such action as he deems necessary and shall thereafter report his action to the Board at its next meeting. This sub-section is clearly inapplicable as it is not the case of the respondents that there was any emergency arising out of the business of the Board which necessitated the taking of immediate action by the Chairman. The recommendation of the text books was not made by the Chairman as an emergency measure-at any rate, that was not the plea taken by the respondents. Sub-s. (4) of s. 15 is a sort of residuary provision which confers power on the Chairman to exercise such other powers as may be vested in him by Regulations . But there is nothing in the Regulations which, vests in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued as authorising the Chairman to exercise the power of the Board to recommend or give advice in relation to text books to be prescribed by the State Government. But in fact we do not think it can be so construed. This decision merely authorises the Chairman to take all necessary steps for the purpose of proceeding further with the implementation of the text books improvement scheme and it does not confer any authority on him to exercise a power of the Board which he other-wise did not possess. In any event the authority conferred by this ,decision cannot include the exercise of a statutory function which came to be vested in the Board for the first time on 23rd Match, 1973 when s. 4, sub-s. (1) was enacted. We are, therefore, compelled to reach the conclusion that the only consultation which the State Government had before issuing the notification dated 24th May, 1973 was consultation with the Chairman and not with the Board. The recommendation of text books by the appropriate Committee of Courses also could not be regarded as consultation with the Board, because the power or function to give opinion or advice in relation to text books to be prescribed by the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout any guidelines to control and regulate the: exercise of such power and without there being anything which would. ensure proper execution of the power or operate as a check on the, injustice that might result from improper execution of the same. The State Government could in exercise of its absolute and uncontrolled discretion select and prescribe any text books it liked without consulting any experts on the subject and this might not only result in wrong. and improper evalutation of the merits of the text books submitted for the consideration of the State Government but also lead to arbitrariness and personal as well as political nepotism. The conferment. of such unguided and uncontrolled power on the State Government in, the matter of selection and prescription of text books contravened the; fundamental right to carry on business guaranteed under Art. 19(1) (g) and was also violative of equality clause contained in Art. 14 and sub-ss.(1)and(3)of s.4 were,therefore,liable to be struck down as invalid.. We do not think this contention of the petitioner is well founded. It must fail for reasons which we immediately proceed to give. One thing is clear that in order to achieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Legislature to decide to which authority it would entrust the power to select and prescribe text books .and so long as the authority chosen by the Legislature is not inappropriate or inadept for the task, no complaint of unconstitutionality in the law can be made on the ground that some other authority which appears to be better could have been chosen by the Legislature. The question which has, therefore, to be considered in adjudging the constitutionality of s. 4, sub-ss. (1) and (3) is not whether a better machinery could have been chosen by the Legislature for selecting and prescribing text books but whether the machinery which is in fact provided by the Legislature is violative of any of the fundamental rights of the petitioner. So far as the claim of the petitioner based on infraction of the fundamental right under Art. 19(1) (g) is concerned, that stands completely negatived by the decision in Rai Saheb Ram Jawaya's case.(1) We have already referred to this decision earlier but in order to appreciate how it applies in the context of the present claim, it is necessary to notice the facts of that case in some detail. The procedure which was framed by the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thors to print and publish them and offer them for sale to the pupils. So long as this system was in vogue the only right which publishers, like the petitioners had, was to offer their books for inspection and approval by the Government. They had no right to insist on any of their books being accepted as text books. So the utmost that could be said is that there ,was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. A trader might be lucky in securing a particular market for his goods but if he loses that field because the particular coustomers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever. On the one hand, therefore, there was nothing but a chance or prospect which the publishers had of having their books approved by the Government, on the 'other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi. The enactment of the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasijudicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose thus clothing the authority with unguided and arbitrary powers enabling it to discriminate.' It can, therefore hardly be disputed that if s. 4, sub-s. (1) were found to confer a naked and arbitrary power on the State Government to select and prescribe such text books as it pleases in exercise of its absolute and uncontrolled discretion without any guiding principle or policy to control and regulate the exercise of such discretion, it would be in violation of the constitutional mandate of equality before law. The State Government would then be able to choose the text book of any publisher it likes and prescribe it as a text book even though it is inferior in quality than the text bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it can easily lend itself to misuse or abuse in the hands of the executive without any one being able to pinpoint or demonstratably show such misuse or abuse of power. The apprehension which was voiced was that since there is no machinery provided by the Legislature which would ensure just and proper execution of the power by the State Government according to the guidelines laid down by the Legislature, the State Government may with impunity act arbitrarily or capriciously and the selection and prescription of text books by it may not only be vitiated by wrong evaluation of the merit and quality of text books but may also conceivably be actuated by personal or political corruption or nepotism on the part of those exercising the power on behalf of the State Government. Now', it is true, and there, can be no doubt about it, that the power conferred on the State. Government is a large discretionary power and no machinery is laid down by the Legislature which would ensure just and proper execution of the power by the State Government but on that account alone the conferment of the power cannot be held to be invalid. Whenever a discretionary power is conferred on any authority, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive minds of young boys and girls and stifling the growth and development of free thought which is so essential for maintenance of democratic way of life. It is our firm belief, nay, a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate. As pointed out by Mr. Justice Holmes in Abrwnson v. United States (2) the ultimate good desired is better reached by free trade in ideas-the best test of truth is the power of the thought to get itself accepted in the competition of the market . There must be freedom of thought and the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest. That is why our Vedic prayer says : Let noble thoughts come to us from all sides . The text books which are selected and prescribed or use in schools must not, therefore, be such as project only a particular social, economic or political philosophy or ideology. The mind or the young students must not be cribbed, cabined and con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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