# STATE OF TAMIL NADU & ORS v. K. SHYAM SUNDER & ORS

- **Citation:** [2011] 11 S.C.R. 1094
- **Court:** Supreme Court of India
- **Decided:** 2011-08-09
- **Case number:** Civil Appeal Nos.6015-6027 of 2011
- **Bench:** J.M. Panchal, Deepak Verma, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-tamil-nadu-ors-v-k-shyam-sunder-ors-27103
- **Pages:** 82

## Headnote

Tamil Nadu Uniform System of School Education Act,
c 2010:
Object of its enactment - Held: To enforce the uniform
education system in the State of Tamil Nadu in order to impart
quality education to all children, .,,..ithout any discrimination on
0
the _ground of their economic, social or cultural background.
s. 3 (amended by Act 2011) - Validity of - The Act 2010
was enacted to enforce the uniform education system in the
State of Tamil Nadu and was helj constitutionally valid by
High Court and Supreme Court - After change of State
E Government, tenders invited for publishing text books taught
under the old system and subsequent thereto, it was decided
in the Cabinet meeting not to implement the uniform
education system - The new Government amended the Act
2010 by the Amendment Act 2011 - Held: Whole exercise
F of amending the Act 2010 was carried out most hurriedly -
The entire exercise by the Government was arbitrary,
discriminatory and oppressive to students, teachers and
parents - One crore twenty lacs students could not be
expected to revert back to the syllabus and textbooks
G applicable prior to 2010 after the aoademic term of 2011-12
has begun as they would be utterly confused and would be
put to enormous stress - State Government should have
acted bearing in mind that "destiny of a nation rests with its
H
1094
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1095
SUNDER & ORS.
youths" - Tamil Nadu Uniform System of School Education
A
(Amendment) Act, 2011.
s. 18 - Scope of - Discussed.
TAMIL NADU UNIFORM SYSTEM OF SCHOOL
EDUCATION (AMENDMENT) ACT, 2011:
Validity of the Act - Held: Not valid - High Court as well
as the Supreme Court had upheld the validity of the Act 2010
- The Amendment Act nul/ified the effect of the judgment of
B
the High Court approved by Supreme Court and repealed the c
Act 2010 - Passing the Act 2011, amounted to nullify the
effect of the High Court and Supreme Court's judgments and
such an act simply tantamounted to subversive of law - Thus,
the Amendment Act was an arbitrary piece of legislation and
violative of Article 14 and was mere pretence to do away the
0
Uniform System of Education in terms of Act 2010 - s.18 of
Act 2010 itself enabled the Government to issue any
executive direction to remove any difficulty to enforce the
statutory provisions of the Act 2010 -
Thus, it was not
permissible for the legislature to annul the effect of the said
E
judgments by the Amendment Act 2011 -
Tamil Nadu
Uniform System of School Education Act, 2010- Constitution
of India, 1950 - Article 14.
ADMINISTRATIVE LAW:
F
Change of policy with the change of Government -
Propriety - Held: The Government has to rise above the
nexus of vested interests and nepotism and eschew windowdressing - Unless it is found that act done by the authority
earlier in existence is either contrary to statutory provisions,
G
is unreasonable, or is against public interest, the State should
not change its stand merely because the other political party
has come into power - The principles of governance have to
be tested on the touchstone of justice, equity, fair play - In
the instant case, Uniform Education system was brought in
H
1096
SUPREME COURT REPORTS
[2011) 11 S.C.R.
A terms of the Act 2010 - Change of government- Before the
first Cabinet meeting of the new Government, tenders invited
to publish the books under the old education system - This
would show that there was a pre-determined political decision
to scrap the Act 2010 which was arbitrary and oppressive to
B students, teachers and parents - Tamil Nadu Uniform System
of School Education (Amendment) Act, 2011.
Colourable legislation - Held: When power is exercised
in bad faith to attain ends beyond the sanctioned purposes
C 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 considera

## Text

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A
B
[2011] 11 S.C.R. 1094
STATE OF TAMIL NADU & ORS.
v.
K. SHYAM SUNDER & ORS.
(Civil Appeal Nos.6015-6027 of 2011)
AUGUST 9, 2011
[J.M. PANCHAL, DEEPAK VERMA AND
DR. B.S. CHAUHAN, JJ.]
Tamil Nadu Uniform System of School Education Act,
c 2010:
Object of its enactment - Held: To enforce the uniform
education system in the State of Tamil Nadu in order to impart
quality education to all children, .,,..ithout any discrimination on
0
the _ground of their economic, social or cultural background.
s. 3 (amended by Act 2011) - Validity of - The Act 2010
was enacted to enforce the uniform education system in the
State of Tamil Nadu and was helj constitutionally valid by
High Court and Supreme Court - After change of State
E Government, tenders invited for publishing text books taught
under the old system and subsequent thereto, it was decided
in the Cabinet meeting not to implement the uniform
education system - The new Government amended the Act
2010 by the Amendment Act 2011 - Held: Whole exercise
F of amending the Act 2010 was carried out most hurriedly -
The entire exercise by the Government was arbitrary,
discriminatory and oppressive to students, teachers and
parents - One crore twenty lacs students could not be
expected to revert back to the syllabus and textbooks
G applicable prior to 2010 after the aoademic term of 2011-12
has begun as they would be utterly confused and would be
put to enormous stress - State Government should have
acted bearing in mind that "destiny of a nation rests with its
H
1094
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1095
SUNDER & ORS.
youths" - Tamil Nadu Uniform System of School Education
A
(Amendment) Act, 2011.
s. 18 - Scope of - Discussed.
TAMIL NADU UNIFORM SYSTEM OF SCHOOL
EDUCATION (AMENDMENT) ACT, 2011:
Validity of the Act - Held: Not valid - High Court as well
as the Supreme Court had upheld the validity of the Act 2010
- The Amendment Act nul/ified the effect of the judgment of
B
the High Court approved by Supreme Court and repealed the c
Act 2010 - Passing the Act 2011, amounted to nullify the
effect of the High Court and Supreme Court's judgments and
such an act simply tantamounted to subversive of law - Thus,
the Amendment Act was an arbitrary piece of legislation and
violative of Article 14 and was mere pretence to do away the
0
Uniform System of Education in terms of Act 2010 - s.18 of
Act 2010 itself enabled the Government to issue any
executive direction to remove any difficulty to enforce the
statutory provisions of the Act 2010 -
Thus, it was not
permissible for the legislature to annul the effect of the said
E
judgments by the Amendment Act 2011 -
Tamil Nadu
Uniform System of School Education Act, 2010- Constitution
of India, 1950 - Article 14.
ADMINISTRATIVE LAW:
F
Change of policy with the change of Government -
Propriety - Held: The Government has to rise above the
nexus of vested interests and nepotism and eschew windowdressing - Unless it is found that act done by the authority
earlier in existence is either contrary to statutory provisions,
G
is unreasonable, or is against public interest, the State should
not change its stand merely because the other political party
has come into power - The principles of governance have to
be tested on the touchstone of justice, equity, fair play - In
the instant case, Uniform Education system was brought in
H
1096
SUPREME COURT REPORTS
[2011) 11 S.C.R.
A terms of the Act 2010 - Change of government- Before the
first Cabinet meeting of the new Government, tenders invited
to publish the books under the old education system - This
would show that there was a pre-determined political decision
to scrap the Act 2010 which was arbitrary and oppressive to
B students, teachers and parents - Tamil Nadu Uniform System
of School Education (Amendment) Act, 2011.
Colourable legislation - Held: When power is exercised
in bad faith to attain ends beyond the sanctioned purposes
C 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 but irrelevant
to the entrustment - If the legislature is competent to pass a
D 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
E Statute - Legislation.
Expert body's opinion - Scope of interference by court -
Held: Courts lack expertise especially in disputes relating to
policies of pure academic educational matters - Therefore,
F generally it should abide by the opinion of the Expert BodyNormal/y the courts should be slow to interfere with the
opinions expressed by the 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
G generally can be.
H
State action - Arbitrariness in - Held: Whenever there
is arbitrariness in State action, whether it be of the legislature
or of the executive, Article 14 of the Constitution immediately
springs into action and strikes down such State action.
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1097
SUNDER & OR$.
CONSTITUTION OF IND/A, 1950:
A
Article 13(2) - Held: Article 13(2) prohibits the State from
making any law which takes away or abridges the rights
conferred by Part-Ill of the Constitution and provides that any
law made in contravention of this Clause shall, to the extent 8
of contravention be void - 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) - The effect
of the declaration of a statute as unconstitutional amounts to
C
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.
Article 21-A - Right to education - Held: Is a fundamental
D
right u!Article 21-A -
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 - Education.
E
DOCTRINES/PRINCIPLES:
Doctrine of lifting veil - Held: 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
F
ascertain its true nature and character. and the impact of the
Act - Thus, courts may examine with some strictness the
substance 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 G
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
H
1098
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A legislature resolved to cure and the true reason for the
remedy.
What cannot be done directly, cannot be done indirectly
- Held: It is a settled proposition of law that what cannot be
8 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 il/ud" - An authority
C cannot be permitted to evade a law by "shift or contrivance" -
Maxim.
EDUCATION/EDUCATIONAL INSTITUTIONS:
Uniform Education system - Historical background for
0 implementation of - Discussed.
LEGISLATION:
Conditional legislation - Held: In case the legislature
wants to delegate its power in respect of the implementation
E of the law enacted by it, it must provide sufficient guidelines,
conditions, on fulfillment of which, the Act would be enforced
by the delegate - Conferring unfettered, uncana/ised powers
without laying down certain norms for enforcement of the Act
tantamounts to abdication of legislative power by the
F legislature which is not permissible in law - More so, where
the Act has already come into force, such a power cannot be
exercised just to nullify its commencement thereof -
Administrative law.
G
Amending Act, if struck down whether old law would revive
- Held: Where the Amendment 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-Ill of the Constitution,
such Act can be described as void ab-initio - In such a
H situation, the Act which stood repealed, stands revived
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1099
SUNDER & ORS.
automatically -
This proposition of law is, however, not A
applicable so far as subordinate legislation is concerned -
Constitution of India, 1950 - Article 13(2).
Bringing a legislation in order to nullify the judgment of
a competent court - Held: Would amount to trenching upon
8
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 -
The
legislature cannot by bare declaration, without anything more,
C
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 ineffective by enacting a valid law
fundamentally altering or changing the conditions on which
D
such a decision is based -
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
- Judgment.
E
INTERPRETATION OF STATUTES:
Reading of statement of Objects and Reasons while
interpreting statute - Held: 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
F
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 of any G
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 by enactment of the particular Act or even for judging
the reasonableness of the classifications made by such Act.
H
1100
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
JUDGMENT/ORDER:
Nullifying the judgment of a competent court by bringing
a legislation - Permissibility - Held: A judicial pronouncement
of a competent court cannot be annulled by the legislature in
8 exercise of its legislative powers for any reason whatsoever.
In the State of Tamil Nadu, there were different
Boards. Each Board had its own syllabus and prescribed
different types of textbooks. This resulted in disparity in
standard of education. In order to remove the disparity,
C State Government appointed Committee for suggesting
a uniform system of school education. During the
intervening period, the Right of Children to Free and
Compulsory Education Act, 2009 was enacted.
D
The Cabinet of the State Government decided on
29.8.2009 to implement uniform system of school
education. To give effect to the decision of the Cabinet,
the Tamil Nadu Uniform System of School Education Act,
2010 was enacted. Section 3 of the Act 2010 provided that
E the Act would commence: in Standards I & VI from the
academic year 2010-11; and 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
F 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.
Several writ petitions came to be filed challenging
G the validity of 2010 Act. The High Court by judgment
dated 30.4.2010 held that the provisions of Sections 11,
12 and 14 of the Act 2010 were unconstitutional and
struck down the same and issued elaborate directions for
implementation of the common syllabus and the
H textbooks for Standards I and VI by the academic year
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1101
SUNDER & ORS.
2010-11; and for all other Standards by the academic year
A
2011-12 or until the State made the norms and the
syllabus and prepared 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
B
Authority and the State Advisory Council under the Act
2009. The State was also directed to indicate approved
textbooks from which private unaided schools c()uld
choose those which are suitable for their schools. The
Court further directed the Government to amend the Act, c
to say that the common/uniform syllabus was restricted
to curricular subjects which the schools were bound to
follow, but not in respect of the co-curricular subjects.
The judgment of the High Court was duly approved
by the Supreme Court by order dated 10.9.2010. The
D
Board approved the syllabus for uniform system.
However, on 16.5.2011, there was change of the State
Government. The new Government amended the Act
2010 by the Amendment Act 2011, by which it substituted
Section 3 by a new Section providing that the schools
E
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 amendment also
omitted Sections 11, 12 and 14 from the Act 2010 since
F
those Sections were struck down by the High Court as
unconstitutional. New academic session was to
commence an 1.6.2011 and the Amendment Act 2011
came into force on 7.6.2011.
Several writ petitions were filed challenging the
Amendment Act. The High Court by order 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
G
H
1102
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A textbooks. The said interim order was challenged before
the Supreme Court. The Supreme modified the said
interim order by order dated 14.6.2011 inter-alia, directing
that the academic Scheme in force for the Academic year
2010-11 for Standards I and VI would continue to be in
B force in all respects for the Academic year 2011-12 as
well; that each text book and to what extent the amended
syllabus would be applicable to every course, should be
finally determined by the High Court keeping in view the
amended provisions of the Act and its impact; and
c 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
0 to X under the Act 2010.
The Expert Committee was constituted and gave its
report to the High Court. The High Court considered the
said report by judgment dated 18.7.2011, found fault with
the report of the Expert Committee and struck down
E Section 3 of Amendment Act 2011. It held that the
Committee so constituted may not be justified in
submitting the report stating that the entire uniform
system of education be scrapped and the text books
already provided for be discarded; that the Expert
F 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; that the
G Committee members were not of the unanimous opinion
that the uniform syllabus and common text books have
to be discarded from the current year; that in the order
dated 10.6.2011, the High Court had directed the
Government to notify the approved text books after
H
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1103
SUNDER & ORS.
conducting the study with a view to comply with the
A
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 were
discarded. by the State; that the State had exceeded its
power in bringing the Amending Act to postpone an
B
enactment which has already come into force. As there
was a sudden change in the policy of the Government
from its predecessor immediately after coming into power
the Court had to see the impact of the amendment,
notwithstanding the competence of the legislature to c
pass an Amendment Act; that 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;
that the State has sought to achieve indirectly what could
0
not be achieved directly as it was prevented from doing
so in view of the judgment of the Division Bencti which
upheld the validity of the Parent Act 201 O; ~hat 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.
E
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; that if the
impugned Amending Act has to be given effect to, it
would result in unsettling various issues and the larger
F
interest of children would be jeopardized. The instant
appeals were filed challenging the order of the High
Court.
Dismissing the appeals, the Court
HELD: 1.1. 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
G
H
1104
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A 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
B mooted by the Government to prepare textbooks and a
common syllabus in education for all students. In 19641966, the report on National Education Policy was
submitted by the Kothari Commission providing for
common schools suggesting that public funded schools
c 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
0 · 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 Nadu,
there has been a demand from the public at large to bring
E 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 ViceChancellor of Bharathidasan University was appointed
F which recommended to introduce a common education
system after abolishing the four different Boards which
was 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.
G S. Muthukumaran Committee which also submitted its
recommendations to the Government to implement a
common education system upto Xth standard. [Para 6]
[1138-D-H; 1139-A-C]
H
1.2. The right to education is a Fundamental Right
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1105
SUNDER & ORS.
under Article 21-A inserted by the 86th amendment of the
A
Constitution. Even before the said amendment, this Court
has treated the right to education as a fundamental right.
There has been a campaign that right to education under
Article 21-A of Indian Constitution be read in conformity
with Articles 14 and 15 of the Constitution and there must
B
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 c
ground of their economic, . social and cultural
background. The propagators of this campaign
canvassed that uniform educatio.n system would achieve
the code of common cuUure, removal of disparity,
depletion of discriminatory values in human relations. It 0
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 uniform Civil code
as it may help in diminishing opportunities to those who
foment fanatic and fissiparous tendencies. [Para 7] [1139E
D-H; 1140-A-C)
.
Miss Mohini Jain v. State of Kamataka & Ors. AIR 1992
SC 1858: 1992 (3) SCR 658; Unni Krishnan, J.P. & Ors. etc.
etc. v. State of A.P & Ors. Etc. AIR 1993 SC 2178: 1993 (1)
F
SCR 594; TM.A. Pai Foundation & Ors. v. State of Karnataka
& Ors. (2002) 8 SCC 481: 2002 (3) Suppl. SCR 587; Rohit
Singhal & Ors. v. Principal, Jawahar N. Vidyalaya & Ors. AIR
2003 SC 2088: 2002 (5) Suppl. SCR-515; State ofOrissa v.
Mamta Mohanty (2011) 3 SCC 436; Osmania University G
Teachers' Assn. v. State of A.P. & Anr. AIR 1987 SC 2034. -
relied on.
Brown v. Board of Education, 347 U.S. 483 (1954);
Plessy v. Ferguson 163 U.S. 537 (1896) - referred to.
H
1106
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A
2. The legal issues involved in the instant case are:
I CHANGE OF POLICY WITH THE CHANGE OF
GOVERNMENT:
The Government has to rise above the nexus of
8 vested interests and nepotism and eschew windowdressing. 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
C 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. Unless it is found that act done by the
authority earlier in existence is either contrary to statutory
D 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. [Paras 16, 20] [1145-G-H; 1147E C]
Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc. etc.
AIR 2003 SC 2562; State of Karnataka & Anr. v. All India
Manufacturers Organisation & Ors. AIR 2006 SC 1846; Statej
of UP. & Anr. v. Johri Mal AIR 2004 SC 3800; State of
F Haryana v. State of Punjab & Anr. AIR 2002 SC 685; M./.
G
Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors. AIR 1999
SC 2468 - relied on.
II. COLOURABLE LEGISLATIONS:
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
H one for which the power is entrusted, guided by an
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1107
SUNDER & ORS.
extraneous consideration, whether good or bad but A
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
B
design. 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 c
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 0
of the legislature to enact that Statute. [Paras 21, 22]
[1147-E-H; 1148-A]
The State of Punjab & Anr. v. Gurdia/ Singh & Ors. AIR
1980 SC 319; K.C. Gajapati Narayan Deo & Ors. v. State of
Orissa AIR 1953 SC 375: 1954 SCR 1; R.S. Joshi, Sa/es Tax
E
Officer, Gujarat & Ors. v. Ajit Mills Limited & Anr. AIR 1977
SC 2279:1978 (1) SCR 338; K. Nagaraj & Ors. v. State of
Andhra Pradesh & Anr. AIR 1985 SC 551: 1985 (2) SCR 579;
Welfare Assocn. A.R.P., Maharashtra & Anr. v. Ranjit P. Gohil
& Ors. AIR 2003 SC 1266: 2003 (2) SCR 139; State of Kera/a
F
& Anr. v. Peoples Union for Civil Liberties, Kera/a State Unit
& Ors. (2009) 8 SCC 46: 2009 (11) SCR.142 - relied on.
Ill. LAWS CONTRAVENING ARTICLE 13(2):
The legislative competence can be adjudged with
G
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
H
1108
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A takes away or abridges the rights conferred by Part-Ill of
the Constitution and provides that any law made in
contravention of this Clause shall, to the extent of
contravention be void. The effect of the declaration of a
statute as unconstitutional amounts to as if it has never
s 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
c 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. [Pars 23, 25) (1148-F-G; 1150-A-D]
Deep Chand & Ors. v. State of U.P. & Ors. AIR 1959 SC
D 648: 1959 Suppl. SCR 8; Mohd. Shaukat Hussain Khan v.
State of A.P. AIR 1974 SC 1480: 1978 (1) SCR 338; Behram
Khurshid Pesikaka v. State of Bombay AIR 1955 SC 123:
1955 SCR 613; Mahendra Lal Jaini v. State of Uttar Pradesh
& Ors. AIR 1963 SC 1019: 1963 Suppl. SCR 912 - relied
E on.
IV. DOCTRINE OF LIFTING THE VEIL:
In order to test the constitutional validity of the Act,
where it is alleged that the statute violates the
F 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
of the legislation and for that purpose, the court has to
look behind the form and appearance thereof to discover
G 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
H which it intended to suppress, the remedy for the disease
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1109
SUNDER & ORS.
Nhich,the leg!slatqre resolved to cure and the true reason
A
for the rernedy.JPara 26) [1150-E-G]
Dw~rkadas ,:Shrinivas v. The Sho/apur Spinning &
Weaving Co: Ltd. & Ors. AIR 1954 SC 119: 1954 SCR 674;
Mahant Moti Das v. S.P. Sahi, The Special Officer in charge
8
of Hindu Religious Trust & Ors. AIR 1959 SC 942: 1959
Suppl. SCR 503; Hamdard Dawakhana & Anr. v. Union of
India & Ors. AIR 1960 SC 554:1960 SCR 671 - relied on.
ii. INTERFERENCE BY COURT WITH EXPERT BODY'S
::>PINION:
C
Undoubtedly, the Court lacks expertise especially in
:tisputes relating to policies of pure academic
~ducational matters. Therefore, generally it should abide
>y the opinion of the Expert Body. Normally the courts o
;hould be slow to interfere with the opinions expressed
JY the experts. It would normally be wise and safe for the
::ourts to leave such decisions to experts who are more
~arriiliar with the problems they face tlian the courts
tienerally can be. [para 27] [1157-B-C]
E
The University of Mysore & Anr. v. G.D. Govinda Rao &
4.nr. AIR 1965 SC 491: 1964 SCR 576; Km. Nee/ima Misra
1. Dr. Harinder Kaur Painta/ & Ors. AIR 1990 SC 1402: 1990
2) SCR 84; The Secretary & Curator, Victoria Memorial Hall
'· Howrah Ganatantrik Nagrik Samity & Ors. AIR 2010 SC
F
1285: 2010 (3) SCR 190; Dr. Basavaiah v. Dr. H.L. Ramesh
Sc Ors. (2010) 8 SCC 372: 2010 (9) SCR 227; State of H.P.
g. Ors. v. H.P. Nizi Vyavsayik Prishikshan Kendra Sangh
:2011) 6 sec 597 - relied on.
II. WHAT CANNOT BE DONE DIRECTLY-CANNOT BE
)ONE INDIRECTLY:
It is a settled proposition of law that what cannot be
Jone directly, is not permissible to be done obliquely,
G
H
1110
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A 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 a/iquid
prohibetur, prohibetur at omne per quod devenitur ad
il/ud." An authority cannot be permitted to evade a law by
s "shift or contrivance". [Para 28) [1151-F]
Jagir Singh v. Ranbir Singh AIR 1979 SC 381: 1979 (2)
SCR 282; M. C. Mehta v. Kamal Nath & Ors. AIR 2000 SC
1997: 2000 (1) Suppl. SCR 389; Sant Lal Gupta & Ors. v.
C Modem Co-operative Group Housing Society Ltd. & Ors. JT
2010 (11) SC 273 - relied on.
VII. CONDITIONAL LEGISLATION:
As the legislature cannot carry out each and every
0 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
E 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
F extended to "repealing or altering in essential particulars
of laws which are already in force in the area in
question". The legislature while delegating such powers
has to specify that on certain data or facts being found
and ascertained by an executive authority, the operation
G 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
H task of subordinate ·legislation necessary for
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1111
SUNDER & ORS.
implementing the purpose and object of the Act. Where
A
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
B
provisions of the particular Act with which the Court has
to deal including its preamble. 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, c
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
0
already come into force, such a power cannot be
exercised just to nullify its commencemen·t thereof.
[Paras 29, 30, 34] [1151-H; 1152-A-G; 1154-C-D]
re: Article 143, Constitution of India and Delhi Laws Act
(1912) etc., AIR 1951 SC 332: 1951 SCR 747; The Municipal
E
Corporation of Delhi v. Bir/a Cotton; Spinning and Weaving
Mills, Delhi & Anr. AIR 1968 SC 1232: 1968 SCR
251 ;Rajnarain Singh v. Chairman, Patna Administration
Committee, Patna & Anr. AIR 1954 SC 569: 1955 SCR 290;
Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore
F
v. Corporation of the City of Bangalore by its Commissioner,
Bangalore City AIR 1962 SC 1263: 1961 SCR 698;
Hamdard Dawakhana v. Union of India AIR 1960 SC 554:
1960 SCR 671; Basant Kumar Sarkar & Ors. v. The Eagle
Rolling Mills Ltd. & Ors. AIR 1964 SC 1260: 1964 SCR 913
G
- relied on.
VIII. LEGISLATIVE ARBITRARINESS:
Whenever there is arbitrariness in State action,
whether it be of the legislature or of the executive, Article
H
1112
SUPREME COURT REPORTS
[2011) 11 S.C.R.
A 14 immediately springs into action and strikes down
such State action. [Para 35] [1154-E-F]
Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. AIR
1981 SC 487: 1981 (2) SCR 79; £.P. Royappa v. State of
Tamil Nadu & Anr. AIR 1974 SC 555: 1974 (2) SCR 348;
8 Smt. Meneka Gandhi v. Union of India & Anr. AIR 1978 SC
597: 1978 (2) SCR 621; Mis. Sharma Transport rep. by D.P.
Sharma v. Government of A.P. & Ors. AIR 2002 SC 322: 2001
(5) Suppl. SCR 390; Bombay Dyeing & Manufacturing Co.
Ltd. (3) v. Bombay Environmental Action Group & Ors. AIR
C 2006 SC 1489: 2006 (2) SCR 920; Bidhannagar (Salt Lake)
Welfare Assn. v. Central Valuation Board & Ors. AIR 2007
SC 2276: 2007 (7) SCR 430; Grand Kakatiya Sheraton Hotel
and Towers Employees and Workers Union v. Srinivasa
Resorts Limited & Ors. AIR 2009 SC 2337: 2009 (3 ) SCR
D 668 - relied on.
IX. AMENDING ACT-IF STRUCK DOWN-WHETHER OLD
LAW WILL REVIVE:
When the statute is amended, the process of
E substitution of statutory provisions consists of two
parts:- the old rule is made cease to exist; and 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
F provision. There is another limb of this legal proposition,
that is, where the Amendment 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-Ill of the
G 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. In case the
Amending Act is struck down by the court for want of
H legislative competence or is violative of any of the,
-sTATE OF TAMIL NADU & ORS. v. K. SHYAM
1113
SUNDER & ORS.
fundamental rights enshrined in Part Ill of the
A
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.
B
[Paras 40, 42, 43, 45) [1155-G-H; 1156-A-B-F; 1157-8-C-FG]
Bhagat Ram Sharma v. Union of India & Ors. AIR 1988
SC 740: 1988 SCR 1034; State of Rajasthan v. Mangilal
Pindwal AIR 1996 SC 2181: 1996 (3) Suppl. SCR 98;
C
Koteswar Vitta/ Karnath v. K. Rangappa Baliga & Co. AIR 1969
SC 504: 1969 (3) SCR 40; Firm A. T.B. Mehtab Majid and
Co. v. State of Madras & Anr. AIR 1963 SC 928: 1963 Suppl.
SCR 435; State of Uttar Pradesh & Ors. v. Hirendra Pal Singh
& Ors. (2011) 5 SCC 305: 2010 (15) SCR 854; Ameer-unD
Nissa Begum v. Mahboob Begum & Ors. AIR 1955 SC 352;
B.N. Tewari v. Union of India & Ors. AIR 1965 SC 1430: 1965
SCR 421; India Tobacco Co. Ltd. v. CTO, Bhavanipore & Ors.
AIR 1975 SC 155: 1975 (2) SCR 612; Indian Express
Newspapers (Bombay) Private Ltd. & Ors. v. Union of India
E
& Ors. AIR 1986 SC 515: 1985 (2) SCR 287; West UP.
Sugar Mills Assn. v. State of UP. AIR 2002 SC 948: 2002
(1) SCR 897; Zile Singh v. State of Haryana & Ors. (2004) 8
SCC 1: 2003 (4) Suppl. SCR 1104; State of Kera/a v.
Peoples Union for Civil Liberties, Kera/a State Unit & Ors.
F
(2009) 8 SCC 46: 2008 (12) SCR 1141; Harbi/as Rai Bansal
v. State of Punjab & Anr. AIR 1996 SC 857: 1995 (6) Suppl.
SCR 178 - relied on.
X. WHETHER LEGISLATURE CAN OVERRULE THE
JUDGMENT OF THE COURT:
G
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 H
1114
SUPREME COURT REPORTS
[2011] 11 S.C.R.
A mention such an objection. The rights embodied in a
judgment could not be taken away by the legislature
indirectly. The legislature cannot by bare declaration,
without anything more, directly overrule, reverse or
override a judicial decision. However it can, in exercise
s of the plenary powers conferred upon it by Articles 245
and 246 of the Constitution, render a judicial decision
ineffective by enacting a valid law fundamentally altering
or changing the conditions on which such a decision is
based. A judicial pronouncement of a competent court
c 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
0 ultra vires and unconstitutional. [Paras 49-51] [1159-F-H;
1160-A-D]
E
Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough
Municipality & Ors. AIR 1970 SC 192: 1970 (1) SCR 388 -
Followed.
·
S.R. Bhagwat & Ors. v. State of Mysore AIR 1996 SC
18.8: 1995 (3) Suppl. SCR 545; Re, Cauvery Water Disputes
Tribunal AIR 1992 SC 522: 1991 (2) Suppl. SCR 497; G.C.
Kanungo v. State of Orissa AIR 1995 $.G-1655: 1995 (1)
Suppl. SCR 510; Madan Mohan Pathak & Anr. v. Union of
F India & Ors. AIR 1978 SC 803: 1978 (3) SCR 334; K.
Sankaran Nair (Dead) through LRs. v. Devaki Amma Malathy
Amma & Ors. (1996) 11SCC428: 1995 (4) Suppl. SCR 493;
A. Manjula Bhashini & Ors. v. Managing Director, Andhra
Pradesh Women's Cooperative Finance Corporation Ltd. &
G Am: (2009) 8 sec 431: 2009 (1 O) SCR 634 - relied on.
XI. READING OF THE STATEMENT OF OBJECTS AND
REASONS: WHILE INTERPRETING THE STATUTORY
PROVISIONS:
1-i
The Statement of Objects and Reasons appended to
STATE OF TAMIL NADU & ORS. v. K. SHYAM
1115
SUNDER & ORS.
the Bill is not admissible as an aid to the construction of A
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.