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West Bengal Head Masters' Association and Anr. Vs. Union of India (UOi) and Ors. (17.03.1983 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberF.M.A.T. No. 3772 of 1982
Judge
Reported inAIR1983Cal448,87CWN597
ActsConstitution of India - Articles 19(1), 51A and 226; ;West Bengal Secondary Education Act, 1963 - Sections 19A, 19A(3), 19A(5) and 27(2); ;West Bengal Secondary Education (Amendment) Act, 1982
AppellantWest Bengal Head Masters' Association and Anr.
RespondentUnion of India (UOi) and Ors.
Appellant AdvocateAjit Kumar Panja and ;Nirmal Kumar Manna, Advs.
Respondent AdvocateSushanta Kumar Kundu, Adv. (for No. 1), ;Pulak Ranjan Mondal, Adv. (for Nos. 2, 8 to 24), ;Somnath Chatterjee, ;Arun Prakash Sircar, ;Suprokash Banerjee and ;Atindra Nath Banerjee, Advs. (for Nos. 3 t
Cases ReferredJulius v. Bishop of Oxford
Excerpt:
- m.m. dutt, j.1. this appeal has been preferred by the west bengal head masters' association and the west bengal guardians' association against the judgment of a learned judge of this court whereby the learned judge discharged the rule nisi issued on the application of the appellants under article 226 of the constitution. the question involved in this appeal is whether the revised history syllabus for class viii introduced by the west bengal board of secondary education, hereinafter referred to as the board, with effect from january 1983 is valid or not.2. according to the appellants, in the state of west bengal, there are two types of schools -- one under the central board of education, new delhi and the other under the west bengal board of secondary education. the syllabi of the two.....
Judgment:

M.M. Dutt, J.

1. This appeal has been preferred by the West Bengal Head Masters' Association and the West Bengal Guardians' Association against the judgment of a learned Judge of this Court whereby the learned Judge discharged the Rule Nisi issued on the application of the appellants under Article 226 of the Constitution. The question involved in this appeal is whether the revised History Syllabus for class VIII introduced by the West Bengal Board of Secondary Education, hereinafter referred to as the Board, with effect from January 1983 is valid or not.

2. According to the appellants, in the State of West Bengal, there are two types of schools -- one under the Central Board of Education, New Delhi and the other under the West Bengal Board of Secondary Education. The syllabi of the two groups are different, but both of them are in conformity with the syllabus as framed by the National Council of Educational Research and Training, hereinafter referred to as NCERT, an autonomous body under the Ministry of Education, Government of India, New Delhi. The History Syllabus for class VIII as prescribed or recommended by NCERT included, amongst others, the following:

'Unit 5. Rise of Indian Nationalism and Struggle for freedom.

(25 Series)

Major Ideas : 1. The discontent created by the British in India through their political and economic policies and emergence of national consciousness among the people led to the emergence of the Indian National Movement which expressed the aspiration of the Indian people as a nation.

2. The Indian independence was obtained at a cost of great sacrifices madeby the Indian people belonging to allcommunities and all parts of the country.

Unit 6. Freedom and after (upto 1950)

(10 periods)

Major Ideas : 1. The partition of the country at the time of independence created a number of problems.'

3. The History Syllabus for class VIII that was operative till 1982, that is to say, before the revised syllabus was introduced, consisted of 165 pages out of which 50 pages were allotted to the history of Freedom Movement, as follows--'History of Freedom Movement -- Indian National Congress -- W. C. Banerjee -- Swadeshi Movement -- Surendranath --Bipin Chandra -- Aurobindo -- B. G. Tilak -- L. Lajpat Roy -- Revolutionary Movement -- Gandhiji's Non-violence, Non-co-operation movement -- Abdul Gaffar Khan -- Deshbandhu Chittaranjan -- Jawaharlal Nehru -- Abul Kalam Azad -- Subhash Chandra Bose -- Gandhiji's Civil Disobedience Movement --Quit India Movement -- Netaji's War against the British and formation of Azad Hind Government -- British withdrawal -- Independence.

(50 Pages)

4. In the revised History Syllabus for class VIII which has been sought to be introduced for the 1983 academic session, only 10 pages out of total 135 pages had been allotted for the Indian Freedom Movement, as follows:

'India 1919-1947: Different phases of the Freedom Movement, non-co-operation movement, Peasants' Workers' participation, civil disobedience movement, 'Quit India', 'Azad Hind' and general upsurge, transfer of power and independence.'

(10 Pages)

5. We have avoided to state the whole syllabus inasmuch as the dispute between the parties relates to the revised syllabus concerning the history of Indian Freedom Movement and the National Leaders of India.

6. It is the case of the appellants that in the impugned revised syllabus there is no specific mention whatsoever of the Indian leaders -- social, literary scientific, religious or political -- whereas the names of Marx, Angel, Mao, Sun Yat Sen, Chiang, 11 leaders of Intellectual renaissance, three leaders of renaissance in Article six leaders of renaissance in science, 10 navigators of Europe, three leaders of reformation movement in Europe, have been specifically mentioned in the revised syllabus. Different phases of freedom movement in India have been covered by only 10 out of 135 pages, whereas Bolshevik Revolution have occupied 5 pages, Chinese Revolution 5 pages and Revolution in South East Asia 3 pages.

7. It may be stated at this stage that the revised History Syllabus for class VIII for the previous academic session 1982 was the same as the present academic session 1983. The appellant No. 1, namely, the West Bengal Head Masters' Association and two other guardians moved an application under Article 226 of the Constitution before B. C. Ray J. challenging the validity of the revised History Syllabus for 1982 academic session on the grounds, inter alia, that in laying down the said syllabus the Board did not conform to the provisions of the West Bengal Secondary Education Act, 1963, and that the syllabus was also violative of the fundamental right under Article 19(1)(a) and the fundamental duty under Article 51A(b) of the Constitution of India. A Rule Nisi was issued on the said application and an interim order was passed by the learned Judge restraining the Board from giving effect to the revised syllabus. Thereafter, at the final hearing of the Rule Nisi, the learned Judge held that in preparing the Syllabus, the Board violated the provision of Section 27 (2) (c) of the West Bengal Secondary Education Act, 1963, hereinafter referred to as the Act, and also that the syllabus was violative of the provision of Article 19(1)(a) of the Constitution, that is to say, the freedom of speech and expression. The learned Judge, however, overruled the contention that the new syllabus was violative of Article 51A(b) of the Constitution. The Rule Nisi was, accordingly, made absolute and the syllabus was struck down.

8. Against the said judgment of B. C. Ray J, an appeal was preferred by the Board. One of the questions before the Appeal Court was whether the revised Syllabus had been framed in accordance with the provisions of the Act, as amended by the Amendment Act of 1979. It was urged on behalf of the writ petitioners, that in preparing the impugned syllabus, the Board had not followed the procedure laid down in Clause (g) ofSub-section (3) of Section 19A read withClause (c) of Sub-section (2) of Section 27of the Act. Clause (g) of Sub-section (3)of Section 19A provided that ''it shall bethe duty of the Executive Committee toprovide by bye-laws after consideringthe recommendation, if any, of the Syllabus Committee, the Syllabus, thecourses of studies to be followed andbooks to be studied in recognised institutions and for examinations institutedby the Board in accordance with suchregulations as may be made by theBoard.' Clause (c) of Section 27 (2)casts a duty upon the Board to make regulation in respect of matters referred toin Clauses (c), (d), (e) and (g) of Subsection (3) of Section 19A. Sub-sec. (4)of Section 27, inter alia, provides thatno regulation shall be valid unless it isapproved by the State Government, andthe State Government may, in accordingto such approval, make such additions,alterations and modifications therein asit thinks fit. So the Board was to makeregulations, inter alia, in respect ofmatters referred to in Clause (g) of Subsection (3) of Section 19A. After theregulations were made by the Board,the same would have to be approved bythe State Government. So long as theregulations were not approved by theState Government, no steps could betaken by the Board. After the approval of the regulations by the State Government, the Board was to frame bye-laws, prepare the Syllabus, lay down thecourses of studies to be followed, booksto be studied in recognised institutionsand for holding examinations inaccordance with the approvedregulations made. It was not disputedbefore the Appeal Court that after theamendment of the Act, no regulationsand no bye-laws had been framed bythe Board. But the Board proceeded toset up a Syllabus Advisory Committeewhich prescribed the Syllabus for History for class VIII for 1982 academicsession. It was held that there couldbe no doubt that the History Syllabusfor class VIII which had been preparedby the Board was violative of the provision of Clause (g) of Section 19A readwith the provisions of Clause (c) of Section 27 (2) of the Act. In other words,it was observed by the Appeal Courtthat, in preparing the History Syllabusfor class VIII, the Board had not followed the mandatory provisions of law as contained in the Act as amended by the said Amendment Act, 1979. Accordingly, it was held that the History Syllabus for 1982 academic session was illegal inasmuch as it was made without following the legal procedure, and that such a syllabus could not be prescribed and the educational institutions could not be directed to follow the syllabus.

9. As to the contention of the writ petitioners that the impugned History Syllabus was violative of the provision of Article 19(1)(a) of the Constitution, the Appeal Court observed that 'he constitutional validity of the Syllabus would arise only when the syllabus had been prepared in accordance with the procedure prescribed by the Act. In that view of the matter, the Appeal Court kept the question open.

10. The Appeal Court, however, modified the judgment of the learned Judge and directed that so long as the History Syllabus for class VIII was not prepared in accordance with the provisions of the Act, as amended by the said Amendment Act of 1979 ,the Board should not prescribe or insist on the teaching of books written on the basis of the impugned revised syllabus for class VIII. The Board was directed to prepare the History Syllabus for class VIII in accordance with the provisions of the Act by October 1982. It was further directed that the schools which had prescribed the books on History for class VIII written in accordance with the impugned revised syllabus would be entitled to leach such books for that year, and that similarly, the schools which were teaching books on History for class VIII written on the basis of the old syllabus, would be entitled to teach the same for that year.

11. The very same syllabus has been prescribed for the academic session 1983. By a circular dated September 21, 1982 issued by the Board to the Heads of the High and Junior High Schools, it was notified for information of all concerned that the Syllabus in History for class VIII had been prescribed by the Board for the academic session 1983 and onwords. It was further directed that the text books in History for class VIII to be written in accordance with the new syllabus and to be submitted to the Board by publishers/authors on or before November 30, 1982 for the purpose of review, be allowed to be prescribed by the schools for the academic session 1983 only under Submission Number of the Board, pending review and approval of the books. But the text books in History for class VIII, submitted for 1983 academic session as above, will be reviewed for approval for 1984 onwards and the recommended text books prescribed by the Board, will only be prescribed by the schools for class VIII for 1984 and onwards. The appellants, namely, the West Bengal Head Masters' Association and the West Bengal Guardians' Association have challenged the said circular and the syllabus principally on two grounds, namely, violation of the provisions of the Act and the provisions of Article 19(1)(a) and 51A(b) of the Constitution. At this stage, we may also refer to the significant fact that the Act was further amended by the West Bengal Board of Secondary Education (Amendment) Ordinance, 1982, which was published in the Calcutta Gazette, Extraordinary, dated August 5, 1982. The Ordinance has since been replaced by an Act, hereinafter referred to as the Amendment Act of 1982.

12. The Amendment Act of 1982 has altered the provisions of the Act as amended by the Act of 1979, to a great extent. Section 19A of the Act provides for the constitution of the Executive Committee. Relevant clauses of subsection (3) of Section 19A are as follows:--

'3. Subject to any general or special orders of the State Government, the provisions of this Act and any rules or regulations made thereunder, the Executive Committee shall have the power to --

(g) provide, after considering the recommendations, if any of the Syllabus Committee, the syllabus, the courses of studies to be followed and the books to be studied in recognised Institutions and for examinations instituted by the Board:

(h) undertake, if necessary, with the approval of the State Government, the preparation, publication or sale of text books and other books for use in recognised Institutions;

(i) (a) maintain and publish lists of books approved for use in recognised Institutions and for examinations instituted by the Board, and

(b) revise such lists from time to time.' Sub-section (5) of Section 19A is as follows:-- '5. The Executive Committee shall have the power to make bye-laws not inconsistent with the Act or rules or regulations made thereunder for discharging its functions under the Act.'

13. Section 20 of the Act provides for the constitution of the SyllabusCommittee. Section 27 (2) (c) has beenomitted from the Ac! by the AmendmentAct of 1982. After the appellants fameto know of the revised syllabus for theacademic session 1983, they again fileda writ petition before a learned Judgeof this Court and obtained a Rule Nisi.At the hearing of the Rule Nisi, it wascontended on behalf of the appellantsthat the amendments introduced by theAmendment Act of 1982 were illegal,arbitrary and without jurisdiction as thesame were in conflict with the provisionsof Sub-sections (4) and (5) of Section 27of the Act. It was contended that inview of the amendment of the Act, theBoard was empowered to act in an unregulated manner and unguided fashionwithout framing bye-laws and, as such,the amendment was bad in law. Thefurther ground of challenge of the Amendment Act of 1982 was that the Actas it stood before the amendment of1982 cast a duty upon the ExecutiveCommittee to provide by bye-laws afterconsidering the recommendations, if any,of the Syllabus Committee, the syllabus,courses of studies to be followed andbooks to be studied in recognised Institutions and for examinations institutedby the Board in accordance with suchregulations as may be made by theBoard, but by the Amendment Act of1982 the duty to frame bye-laws havebeen dispensed with and thereby thevarious committees have been given unregulated powers to act according totheir own whims. The appellants alsocontended that the revised History Syllabus for class VIII for 1983 academicsession was ultra vires Articles 19(1)(a)and 51A(b) of the Constitution.

14. The learned Judge overruled the contentions of the appellants that the Amendment Act of 1982 was illegal and invalid. The learned Judge also overruled the contention of the appellants that the revised History Syllabus was ultra vires the provisions of Articles 19(1)(a)and 51A(b) of the Constitution. In that view of the matter, the learned Judge discharged the Rule Nisi. Hence this appeal.

15. At this stage we may deal with two objections taken by Mr. Somnath Chatterjee, learned Counsel for the Board relating to the maintainability of the writ petition. The first objection is that the writ petition having been filed after inordinate delay it should be dismissed. It appears that on September 21, 1982 the impugned circular was published in the 'Parshad Barta' an official organ of the Board. It was also sent to the different schools recognised by the Board. The writ petition was, however, moved on November 26, 1982, that is to say, two months after the publication of the circular. The reply of the appellants is that the impugned circular and the syllabus were not available to them before the middle of October, 1982 when this Court was going to be closed for the long Puja Vacation. It is submitted that the appellants had no ideas that a writ petition could be moved during the vacation. The appellants are laymen and we do not find any reason why we should not accept the explanation given by the appellants. The appellant have challenged that the impugned syllabus is ultra vires the provisions of Articles 19(1)(a)and 51A(b) of the Constitution. They have also challenged the validity of the Amendment Act of 1982. In our opinion, when such challenges are made the Court will be slow in refusing to entertain the writ petition, regard being had to the fact that the delay was only of two months. Further, we do not consider that the appellants have come to this Court after an inordinate or unreasonable delay so that the writ petition was liable to be dismissed in limine. The first objection of the respondents is, accordingly, overruled.

16. The second objection is directed against the locus standi of the appellants -- West Bengal Head Masters' Association and the West Bengal Guardians' Association. The appellant No. 1 is an Association registered under the Societies Registration Act. It is contended on behalf of the Board that these two Associations are not affected by the impugned revised syllabus, and that they cannot have any legal right. It is difficult to accept such a contention. Both these Associations are interested in the education of the boys and girls of the Stale and, if according to them, the syllabus has not been properly prepared they have, in pur opinion, locus standi to file a writ petition. In our view, any person interested in education may come to the High Court complaining about any irregularity or illegality committed by a statutory body entrusted with the education of children and seeking relief against such irregularity or illegality. There is, therefore, no substance in the contention of the respondents and it is rejected.

17. It has been vehemently urged by Mr. Panja, learned counsel for the appellants that the impugned syllabus is ultra vires Articles 19(1)(a)and 51A(b) of the Constitution. The manner in which the point has been developed and elaborated by the learned counsel will be stated presently. It has been already noticed that the case of the appellants is that in framing the syllabus the Executive Committee has departed from the syllabus prescribed by NCERT which is Central Body. NCERT has prescribed the syllabus for History for Class VIII which includes the history of national movement and the national leaders of our country. The impugned revised syllabus has not, however, included the names of all the national leaders as in the old syllabus prescribed by the Board sometime in 1974. Further, only 10 pages have been allotted out of a total of 135 pages, while in the old syllabus, the history of national movement and of the leaders of our country occupy 50 pages out of 165 pages. In other words, the old syllabus is in accord with the syllabus prescribed by the NCERT. It is also complained by the appellants that the names of Marx, Angel, Mao, Sun Yat Sen, Chiang etc. have been included in the impugned revised syllabus which should not have been so included.

18. It is submitted on behalf of the appellants that the teaching of Indian History in Class VIII thoroughly and exhaustively in preference to world history is necessitated by the Board for Class VIII in the terminal stage of education for many students. It is contended that Class VIII is a formative stage of the students and, at that stage, before they are taught of any other idiology, they should be imbibed with the tradition, culture and heritage of India and also with the spirit and ideals of the national leaders of our country, particularly those who had laid down their lives for the freedom of the motherland, that is, India. Class VIII is a terminal stage of education for many because at the end of Class VIII 40% of the students drop out. These students who cannot prosecute their studies in higher classes because of poverty or their engagement elsewhere will be deprived of the knowledge of the freedom movement and of the history of Indian national leaders and, consequently, they will be deprived of their fundamental right to the freedom of speech and expression Under Article 19(1)(a) and also will be prevented from performing their fundamental duty to cherish and follow the noble ideas which inspired our national struggle for freedom Under Article 51A(b) of the Constitution.

19. In support of the contention that 40% of the students drop out after finishing their studies in Class VIII, the learned counsel for the appellants has placed much reliance upon the report of the Education Commission, 1964-1966, commonly known as Kothari Commission. Reliance has also been placed by the learned counsel upon a statistical report contained in the book entitled 'India 1980', an annual publication of the Government of India. In paragraph 2.17 of the report of Kothari Commission, it is stated, inter alia, that at the end of the primary stage, a proportion of students will step out of the school system and enter working life. The percentage of such students has been stated to be about 20%. Further, it is stated that some more will step out of the stream of general education into different vocational courses (about 20%) and those remaining will continued further in the stream of general education (about 60%). Therefore, according to Kothari Commission, the drop out of 40% takes place at the end of the primary stage. But under paragraph 8.18, the primary stage referred to by the Commission ends at Class VII and then starts the lower secondary stage -- Class VIII to Class X. The Kothari Commission report does not, on the face of it, support the contention of the appellants that the drop out of 40% of the students takes place after the end of Class VIII.

20. In India 1980, it appears from the annual statistics given therein that in Classes VI -- VIII, the total strength of students in India is 181,8 lakhs, and in classes IX to XII it is 83.2 lakhs. These show that there is a drop out of more than 40% of students during the period of studies from class IX to class XII. It is, however, very difficult to say with any amount of certitude that at the end of class VIII, a drop out of 40% of students takes place every year.

21. Counsel for the appellants endeavours to support his contention regarding drop out of a large number of students after class VIII from certain statements made on behalf of the Board in the affidavit filed in the earlier writ proceeding relating to the revised History Syllabus for class VIII for the academic session 1982. It has been stated by the Board that in 1982 the total number of students studying in class VIII was about 7.20 lakhs and the total number of students enrolled in all subjects for Madhyamik Pariksha held after class X for 1980 was about 2.35 lakhs. It is contended that the said statements of the Board show that there was a drop out of about 67% of students between class VIII and class X. It is true that there had been a drop out of a large number of students between class VIII and class X, but then again it cannot be said definitely that about 40% of students had dropped out after class VIII. Of course, there can be no doubt that the statement of the Board shows that there is a drop out of a large number of students between class VIII and class X. Counsel for the appellants has urged that the Board having been posted with all facts, particularly the fact about the drop out of students taking place after the end of class VIII, onus lies heavily on the Board to prove that after the end of class VIII there is no drop out or, at least, the drop out is negligible. Counsel submits that in any event, the Board should in all fairness produce before this Court its records so that the actual position as to the drop out of students at the end of class VIII can be ascertained.

22. As has been noticed already, the Kothari Commission Report does not support the contention of the appellants that about 40% of students drop out after the end of class VIII. On the contrary, under the said Report, the drop out takes place after the end of class VII. According to India 1980, the drop out takes place between class IX and class XII and the said statement of the Board in the previous writ proceeding shows that the drop out takes place between class VIII and class X. So there is no positive evidence that after class VIII 40% of the students drop out.

23. We may, however, proceed on the assumption that 40% of the students leave the school system of education after class VIII and, on such assumption, let us consider whether the impugned revised syllabus for the academic session 1983 infringes the fundamental right Under Article 19(1)(a) and fundamental duty Under Article 51A(b) of those students who leave schools after class VIII. Article 19(1)(a) provides that all citizens shall have the right to freedom of speech and expression. The question with which we are concerned is whether the right of freedom of speech and expression includes the right to study in class VIII the history of the freedom movement and of the national leaders of our country. In Maneka Gandhi v. Union of India, : [1978]2SCR621 , the question that came up for consideration before the Supreme Court was whether impounding of a passport for going abroad infringed the fundamental right to freedom of speech and expression of the holder of the passport. In other words, whether the right to travel abroad is also included in the right to freedom of speech and expression Under Article 19(1)(a) of the Constitution, In that connection, Bhagwati J, observed as follows (at pp. 640-41) :

'It would thus be seen that even if a right is not specifically named in Article 19(1), it may still be a fundamental right covered by some clause of that Article, if it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right. It is not enough that a right claimed by the petitioner flows or emanates from a named fundamental right or that its existence is necessary in order to make the exercise of the named fundamental right meaningful and effective. Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. The contrary construction would lead to incongruous results and the entire scheme of Article 19(1) which confers different rights and sanctions different restrictions according to different standards depending upon the nature of the right will be upset. What is necessary to be seen is, and that is the test which must be applied, whether the right claimed by the petitioner is an integral part of a named fundamental right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and substance nothing but an instance of the exercise of the named fundamental right.'

24. Bhagwati J. has, by way of illustration, referred to the freedom of press which is the most cherished and valued system in a democracy, yet freedom of press is not enumerated as a fundamental right in Article 19(1). But freedom of press is part of right of free speech and expression and is covered by Article 19(1)(a), the reason being that freedom of press is nothing but an aspect of freedom of speech and expression and partakes of the same basic nature and character and, indeed, an integral part of free speech and expression. It has been observed by Bhagwati J. that free debate and open discussion, in the most comprehensive sense, is not possible unless there is a free and independent press. Thus it is well established that freedom of press is an integral part of free speech and expression Under Article 19(1) of the Constitution.

25. It will also be profitable to refer to another observation of Bhagwati J. which is as follows:

'It is no doubt true that going abroad may be necessary in a given case for exercise of freedom of speech and expression, but that does not make it an integral part of the right of free speech and expression. Every activity that may be necessary for exercise of freedom of speech and expression or that may facilitate such exercise or make out meaningful and effective cannot be elevated to the status of a fundamental right as if it were part of the fundamental right of free speech and expression. Otherwise, particularly every activity would become part of some fundamental right or the other and the object of making certain rights only as fundamental rights with different permissible restrictions would be frustrated.'

26. It has been laid down by the Supreme Court in the above observations that when a right is not specifically named in Article 19(1), it may still be a fundamental right if it satisfies the conditions that it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right. Right to study a particular subject is not named in Article 19(1)(a) as a fundamental right. It does not, however, in our opinion, form an integral part of the right to freedom of speech and expression and does not partake of the same basic nature and character as that fundamental right, it may be said that unless one learns the subject, he cannot speak or express himself on that subject, but this aspects of the right is not the integral part of the right to freedom of speech and expression. To study a subject will be to facilitate the exercise of the right to freedom of speech and expression, but because of that, right to study cannot be considered as the same thing or having the same basic nature and characteristic of the right to freedom of speech and expression. There can be no doubt that freedom of press is tantamount to freedom of speech and expression, but right to study journalism which will undoubtedly facilitate the exercise of the fundamental right of the freedom of press cannot, however, be claimed as an integral part of the freedom of press or the freedom of speech and expression and, as such, it is not a fundamental right. If, for example, right to study Indian history in class VIII is regarded as a fundamental right Under Article 19(1)(a), a student who has not been promoted to class VIII can complain infringement of his fundamental right. There can, however, be no doubt that every person has the right to study any subject and no one can interfere with that right. A student of class VIII has also the right to study Indian history, but he cannot claim that he must be taught Indian history in compliance with his said right. It has been already noticed in the observation of Bhagwati J. that going abroad may be necessary in a given case for exercise of freedom of speech and expression, but that does not make it an integral part of the right of free speech and expression. The observations quoted above do not, therefore, support the contention of the learned counsel for the appellants that the right to study Indian history in class VIII is the same as right to freedom of speech and expression Under Article 19(1)(a). So even on the assumption that about 40% of students drop out of the school system of education after class VIII, it will not be correct to say that the respondents not having included in the impugned syllabus the history of the freedom movement as also of the national leaders of our country had acted in infringement of the fundamental right of those students as embodied in Article 19(1)(a) of the Constitution. We, therefore, hold that the impugned history syllabus for class VIII for the academic session 1983 does not offend against Article 19(1)(a) of the Constitution.

27. We do not also accept the contention of the appellants that the impugned syllabus is violative of Article 51A(b) of the Constitution. Article 51A(b) imposes a duly on every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom. The performance of the duty is quite personal to every citizen of India. No duty has been imposed on the State, but on the citizens of India. There is much difference between right and duty. While a right can be claimed against another, a duty has to be performed. It is not necessary for us to consider whether the duly imposed on every citizen of India Under Article 51A of the Constitution can be enforced against a citizen or not. A citizen cannot claim that he must be properly equipped by the State so as to enable him to perform his duties Under Article 51A which does not confer rights but imposes certain duties. So a student cannot claim that he must be taught the Indian history in class VIII so that he can perform his duty Under Clause. (b) of Article 51A of the Constitution. In our opinion, therefore, there is no substance in the contention of the appellants that the impugned history syllabus has been prepared in violation of the provision of Article 51A(b) of the Constitution.

28. In view of Clause (g) of Section 19A (3) of the Act, the Executive Committee has to prepare the syllabus after considering the recommendations, if any, of the Syllabus Committee. The challenge of the appellants is directed against the formation of the Executive Committee and the Syllabus Committee. It is contended that both these committees have not been constituted in accordance with the provisions of the Act under Section 19A (1) of the Act, besides for ex-officio members the Executive Committee shall consist of 14 members to be elected from different categories in the manner provided by regulations. Similarly, Under Section 20 of the Act, as amended by the Amendment Act of 1982, the Syllabus Committee shall, besides the President of the Board and four ex-officio members, consist of nine other members to be elected in the manner provided by the regulations. It is urged on behalf of the appellants that as no regulation has been framed by the Board, neither the Executive Committee nor the Syllabus Committee could be constituted in accordance with the provisions of the Act, in other words, it is submitted that there is no Executive Committee or Syllabus Committee and the revised History Syllabus purported to have been prepared by the Executive Committee is illegal and invalid.

29. It is difficult for us. however, to entertain the above contention inasmuch as there is no averment in the writ petition that the Board has not framed any regulation in regard to the constitution of the Executive Committee or the Syllabus Committee. It has been rightly submitted by Mr. Somnath Chatterjee on behalf of the Board that if any such averment had been made in I he writ petition, the Board could have met the same by the production of the regulation. In the circumstances, we do not wish to embark upon the contention of the appellants on an assumption that no regulation has been framed by the Board.

30. It is next contended by Mr. Panja that, in any event, without framing the bye-laws which, admittedly, have not been framed, no syllabus could be framed by the Executive Committee. The impugned revised syllabus, it is submitted, should be struck down as illegal, having been made arbitrarily in violation of the provisions of the Act. In this connection, we may refer to Clause (g) of Sub-section (3) of Section 19A, as it stood before the amendment of the Act, by the Amendment Act of 1982. Clause (g) of Sub-section (3) provided as follows :

'3. It shall be the duly of the Executive Committee to -- (g) provide by bye-laws alter considering the recommendations, if any. of the Syllabus Committee, the syllabus the courses of studies to be followed and books to be studied in recognised Institutions and for examinations instituted by the Board in accordance with such regulations as may be made by the Board.'

The opening words of Sub-section (3) and Clause (g) have been altered by the Amendment Act of 1982. The amended Clause (g) of Sub-section (3) reads as follows:

'3. Subject, to any general or special orders of the State Government, the provisions of this Act and any rules or regulations made thereunder, the Executive Committee shall have the power to -- (g) provide, after considering the recommendations, if any, of the Syllabus Committee, the syllabus, the courses of studies to be followed and the books to be studied in recognized Institutions and for examinations instituted by the Board.'

31. So, before the amendment, it was the duty of the Executive Committee to provide by bye-laws, the syllabus etc. in accordance with the regulations made by the Board. After the amendment by the Amendment Act of 1982, the syllabus etc. are not to be provided by bye-laws in accordance with the regulations made by the Board. Further, it is no longer the duly of the Executive Committee to provide the syllabus etc., but the Executive Committee shall have the power to provide the syllabus etc., subject to any general or special orders of the State Government, the provisions of the Act and any rules or regulations made thereunder.

32. The question that arises for our consideration is whether, after the amendment, it is discretionary with the Executive Committee or it is incumbent upon it to frame the bye-laws, inter alia, for the purpose of preparation of the syllabus. In this connection, we may refer to Sub-section (5) of Section 19A of the Act which has been incorporated into the Act by the Amendment Act of 1982. Sub-sec. (5) of Section 19A provides that the Executive Committee shall have the power to make bye-laws not inconsistent with the Act or the rules or the regulations made thereunder for discharging its functions under the Act. It is urged by Mr. Panja that when the power is conferred on the executive for public good, it is mandatory to exercise the power, failing which the Court will enforce the same. In support of his contention, the learned counsel has placed reliance on the following observation in Craies on Statute Law, 6th Edition, Page 284 --

'(i) Statutes passed for the purpose of enabling something to be done are usually expressed in permissive language, that is to say, it is enacted that 'it shall be lawful.' etc., or that 'such and such a thing may be done'.

Prima facie, these words import a discretion, and they must be construed as discretionary unless there be anything in the subject-matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative.

'The words 'it shall be lawful' are words,' said Lord Cairns in Julius v. Bishop of Oxford, (1880) 5 AC 214, 'making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. These words being, according to their natural meaning, permissive or enabling words only, it lies upon those who contend that an obligation exists to exercise this power to show in the circumstances of the case something which according to the principles I have mentioned, creates this obligation.

(ii) It is, however, a well-recognised canon of construction, as Lord Cairns said in Julius v. Bishop of Oxford, that 'where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that powers ought to be exercised and the court will require it to be exercised.'

33. On the other hand, it is submitted by Mr. Somnath Chatterjee that by the Amendment Act of 1982, the duty of the Executive Committee has been changed to a confirment of power on it. By the amendment, no duty has been imposed upon the Executive Committee to frame bye-laws, so it is discretionary with the Executive Committee whether it would frame bye-laws or not. It has been already noticed that Sub-section (3) and Sub-section (5) of Section 19A of the Act confer certain powers on the Executive Committee. The question is, however, whether such powers must be exercised by the Executive Committee. In other words, whether the words 'shall have the power' occurring in Sub-section (3) and Sub-section (5) of Section 19A are meant to be imperative. Normally, as has been observed in Craies on Statute Law quoted above, such words like 'shall have the power' import a discretion unless there be anything in the subject-matter to which they are applied, or in any other part of the statute to show that they are meant to be imperative. Under Clause (g) of Sub-section (3) of Section 19A, the Executive Committee shall have the power to provide the syllabus, the courses of studies etc. Can it be said that, it is discretionary with the Executive Committee to provide or not to provide the syllabus, the courses of studies etc. It cannot be, for it is absurd to think that the students will prosecute their studies without knowing what they will have to read on a particular subject or subjects. So, in spite of the words 'shall have the power' in Sub-section (3) of Section 19A, Clause (g) must be read as mandatory, and it casts a duty upon the Executive Committee to provide the syllabus. There is no provision in the Act laying down how the Executive Committee will provide the syllabus, the courses of studies etc., and how the Syllabus Committee will make recommendations about the same. But the legislature has conferred power on the Executive Committee to make bye-laws Under Sub-section (5) of Section 19A of the Act. Again, Sub-section (5) uses the expression 'shall have the power'. This power has been conferred on the Executive Committee for discharging its functions under the Act. One of the functions to be discharged by the Executive Committee is to provide the syllabus, the courses of studies to be followed and books to be studied in recognised institutions and for examinations instituted by the Board. That power would not have been conferred by the legislature on the Executive Committee if it was thought to be unnecessary. The legislature, however, considers that the framing of bye-laws will be necessary for the Executive Committee for discharging its various functions under the Act. It is true that the Executive Committee and the Syllabus Committee have been constituted, but the question is how and in what manner these two committees, particularly the Executive Committee, will function. The Syllabus cannot be prepared by the Executive Committee arbitrarily. In preparing the syllabus, the Executive Committee has to take into consideration certain matters. In the absence of the bye-laws, there will be great practical difficulties for the Executive Committee in the discharge of its functions. Who will convene the meeting of the Executive Committee How many members will form the quorum What matters are to be considered by the Executive Committee? What will it do if the Syllabus Committee fails to make any recommendation What will the Executive Committee do if it does not accept the recommendation of the Syllabus Committee These are some of the problems the Executive Committee will have to face in the absence of the bye-laws. In our opinion, it is inconceivable that without framing bye-laws the Executive Committee can properly discharge its functions under the Act.

34. In this connection, we may refer to the provision of Section 30 of the Act, as amended by the Act of 1979, which provides that the Board shall make regulations relating to meetings of any committee other than the Executive Committee or any Regional Council constituted by it, and the procedure to be followed at such meetings. Section 30 is mandatory and the Board has to frame regulations. It will be quite unreasonable and unjustifiable to contend that it is discretionary with the Executive Committee in regard to the framing of the bye-laws because of the words 'shall have the power'. It has been already pointed out that if [he said words are construed as importing or implying discretion on the part of the Executive Committee, then the Executive Committee may not even provide the syllabus, the courses of studies etc. as per Clause (g) of Section 19A (3) of the Act, which is absurd. Thus in the context of the various functions of the Executive Committee, it cannot but be held that the words 'shall have the power' do not confer a discretion on the Executive Committee, but are imperative and mandatory, it is in-conceivable that while the legislature casts a duty on the Board to frame regulations, it makes discretionary with the Executive Committee the framing of bye-laws. It is a rule of construction that normally, the same word or a group of words occurring in a statute have the same meaning. The words 'shall have the power' in Clause (g) of Sub-section (3) of Section 19A having been held to imply imperative, such words occurring in Sub-section (5) of Section 19A must of necessity and, particularly in the context of the functions required to be discharged by the Executive Committee, be construed as implying a duty on the Executive Committee to frame the bye-laws. The Executive Committee has not, however, framed any bye-laws. It is not readily understandable how the Executive Committee will discharge its various functions under Section 19A (3) without framing any bye-laws.

35. Another very important function of the Executive Committee is that contained in Clause (i) (a) of Sub-section (3) of Section 19A of the Act which, inter alia, provides that the Executive Committee shall have the power to maintain and publish lists of books approved for use in recognised Institutions and for ex-aminations instituted by the Board. It is contended on behalf of the Board that this power of the Executive Committee is also discretionary. Indeed, although the Executive Committee has prescribed the syllabus, it has not approved the books on history for class VIII for the current academic session. Instead, by the circular died September 21, 1982 issued by the Board to the Heads of the High Schools and Junior High Schools it has been directed, inter alia, that the text books in History for class VIII to be written in accordance with the new syllabus and to be submitted to the Board by publishers authors on or before November 10, 1982, for the purpose of reviews, be allowed to be prescribed by the schools for the academic session 1983 and under 'Submission Number' of the Board, pending review and approval of the books. Further, it has been directed that The text books on History for class VIII submitted for 1983 academic session will be reviewed for 1934 and onwards and the recommended text books, approved by the Board, will only be prescribed by the schools for class VIII for 1984 and onwards. The date for submission of books by the publishers/ authors was subsequently extended.

36. Under the circular, the Board will review and approve the books on History for class VIII, but under Clause (i) (a) of Section 19A (3), it is the Executive Committee which has to approve the books. Be that as it may the fad remains that the books purported to have been written on the basis of the impugned syllabus have not been reviewed and approved by the Executive Committee even within the extended date of submission of the books. It is said that due to shortness of time, the review could not be made. It has been observed by the learned Judge that there is substance in the contention of the writ petitioners, who are the appellants before us, that the text books on History for class VIII are going to be prescribed without review and approval in utter disregard of Clause (i) (a) of Section 19A (3) of the Act. The learned Judge, however, took the view that as there was not sufficient time left to the 'Board' to prepare the syllabus which would be introduced from the ensuing year, he would not be justified in restraining the Board from permitting the use of any text book in class VIII for the year 1983 without strictly complying with the said provision, in the interest of the students.

37. In our opinion, however, shortness or lack of sufficient time is no ground for a statutory body not to discharge its duties entrusted to it by the statute. There is no evidence before us that any attempt has been made by the Executive Committee to review the books. It appears that the respondents were under the impression that it was the Board that was responsible for the review and approval of the books. It might not have been possible for the Board to consider the question of approval of the books, but there is nothing to show that it was not possible for the Executive Committee to discharge this very important function with which it has been entrusted under Clause (i) (a) of Sub-section (3) of Section 19-A of the Act. In our opinion, the welfare of the students demands that they should be asked to read only those books which would really help them to acquire knowledge and not those that would be detrimental to their interest. It is not comprehensible how without the books being reviewed and approved, the students can be asked to read the same. Even if we assume that all the books have been written in accordance with the syllabus, only those which are of quality meeting the needs of the students should be prescribed for them and that can be done only by applying the mind to the pages of the books. We are unable to accept the contention of the Board that in view of the words 'shall have the power' in Sub-section (3) of Section 19A of the Act, the provision of Clause (i) (a) of Sub-section (3) is discretionary. In other words, the submission is that it is discretionary with the Executive Committee to exercise or not to exercise its power of approval of books. It has been already observed that the words 'shall have the power' in Section 19A (3) imply and import imperative. The said words cannot be differently interpreted in respect of the various clauses of Sub-section (3) of Section 19A including Clause (i) (a) thereof. Moreover, in view of the fact that the interests of the students are very much involved in the matter of review and approval of books, the said words cannot but be construed as imposing a duty on the Executive Committee to discharge i1s function under Clause (i) (a) of Section 19A (3) of the Act. It is thus apparent that the Executive Committee has failed to perform a mandatory duty under Clause (i) (a) of Section 19A (3) of the Act and this failure will go against the interest of the students of class VIII, it' they are asked to read books not reviewed and approved. Thus there has been serious irregularity in the laying down of the syllabus for History for class VIII and also in prescribing books on History without reviewing the same.

38. Although the irregularity of the Executive Committee in not framing the bye-laws is serious yet, considering the interests of the students was might not have interfered with the prescription of books written on the basis of the impugned syllabus. But to allow such books, which have not been reviewed and approved by the Executive Committee, to be read by the students of class VIII would, in our opinion, be detrimental to the interest of the students. The old syllabus is still in existence and no harm will be caused to The students of class VIII if for this year they are laugh the books on History written on the basis of the old syllabus. It will not be unreasonable to presume that as the books written on the basis of the impugned syllabus have not yet been introduced in any school recognised by the Board, as it could not be due to the interim order, such schools have prescribed books written in accordance with the old syllabus and approved by the Board.

39. For the reasons aforesaid, the impugned circular dated September 21, 1932, a copy of which is annexure 'B' to the writ petition, in so Car as it permits the Heads of High and Junior High schools recognised by the Board to prescribe the books on History for class VIII written in accordance with the impugned syllabus for the academic session 1983 under 'Submission Numbers' of the Board is quashed. The Board is directed not to insist on any Institution recognised by it to prescribe books purported to have been written in accordance with the impugned syllabus in the current academic session. Such Institutions will| be entitled to prescribe books written on the basis of the old syllabus and, it already prescribed, will be entitled to teach the same in the current academic session. The Executive Committee is directed to frame bye-laws and, after the bye-laws are framed, to reconsider impugned Syllabus or prepare a fresh Syllabus for History for class VIII for the next academic session, in accordance with such bye-laws and the provisions of the Act.

40. The order of the learned Judge discharging the Rule Nisi is set aside. The Rule Nisi is made absolute and the appeal is allowed only to the limited extent indicated above. There will, however, be no order as to costs.

41. Mr. Sircar, learned Counsel appearing on behalf of the Board prays for a certificate for appeal to the Supreme Court under Article 134A of the Constitution. In our opinion, the appeal does not involve such a question of law of general importance as to grant a certificate tot-appeal to the Supreme Court. In the circumstances, the prayer for certificate is disallowed. The prayer for stay of the operation of this judgment is also disallowed.

C.K. Banerji, J.

42. I agree.


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