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ORIGINAL JURISDICTION : Writ Petition No. 1177 of 1973 (Under Article 32 of the Constitution for enforcement of the fundamental rights).

B. Sen with K. P. Munshi, U. K. Khaitan and S. R. Agarwala, for the petitioner.

Y. S. Dharmadhi Kari with Ram Punjwani and. I.N. Sharff. for the respondent 1-3 (In W. P. 1177) V. N. Ganpule and Urmila Sirur for the respondent 4-6 (in W. P. 1177) The Judgment of the Court was delivered by BHAGWATI, J.-The petitioner carries on business of printing, publishing and selling text books for use in Primary, Middle schools and Higher Secondary classes in schools in the State of Madhya Pradesh. On 1st November, 1956, as a result of the reorganisation of States under the States Reorganization Act, 1956, a new State of Madhya Pradesh was formed comprising of territories of the existing States of Madhya Pradesh known as Mahakoshal area, the territories of the existing State of Madhya Bharat, excluding Sunel Tappa, Sironj SubDivision of Kotah District in the existing State of Rajasthan and the territories of the existing States of Bhopal and Vindhya Pradesh. We are concerned in this petition mainly with Mahakoshal and Madhya Bharat regions of the State of Madhya Pradesh and we shall, therefore, so far as any references to the position obtaining prior to the reorganization of the States is concerned, confine our attention only to those two regions. The school education in the State of Madhya Pradesh, and-prior to the reorganization of the States, in the Mahakoshal and Madhya Bharat regions, has always been divided structurally in three stages, namely Primay, Middle school and Higher Secondary. Primay education consists of classes I to V, Middle School, of classes VI to VIll and Higher Secondary of classes IX to XI. Primary and Middle school education may be considered together, for barring a short period upto the enactment of the Madhya Pradesh Secondary Education Act, 1959 (hereinafter referred to as the Act of 1959), when Middle school education was clubbed together with Higher Secondary education and was treated differently from Primary education, Middle school education has always been treated on the same basis as Primary education in contrast to Higher Secondary Education. it is not necessary for the purpose of the present petition to trace the history of the regulation of Primary and Middle school education from the inception, It would be sufficient to state that Primary education at all times and Middle school education, so far as Mahakoshal region is concerned, after the enactment of the Act of 1959, and in other regions even before that time, were regulated by the State Government. The State Government prescribed the courses of instruction and syllabi for all classes of Primary and Middle school education and they were followed not only by Government schools but also by private schools, not because of any statutory authority, but because most of the private schools depended on grant-in-aid from the State Government and unless the courses of instruction and syllabi prescribed by the State Government were followed by them, they would not be recognized by the Board of Secondary Education so as to be able to present their students for the examination to be held by the Board a sine qua non for admission to a university-unless their Primary and Middle schools sections were recognized by the State Government. So far as the text books for use in Primary and Middle school classes were con- cerned, the State Government prescribed 29 text books printed and published by it on different subjects for use in different classes. There was of-course, no statutory provision under which these 29 text books could be prescribed by the State Government and the prescription of these 29 text books had, therefore, no statutory authority but private schools, no less than Government schools, accepted these 29 text books because non-acceptance would have involved estoppage of grant-in-aid from the State Government. In the meantime a Society called the Madhya Pradesh Pathya Pustak Rachna Avam Shaikshinik Anusandhan Nigam (hereinafter referred to as the Text Books Corporation) was formed by the State Government for the purpose of carrying on the work of printing, publishing and distributing text books for use in the Primary and Middle school classes in the State of Madhya Pradesh. The Minister incharge of the portfolio of education was an ex-officio, Chairman of the text Books Corporation, while some officers of the Government connected with the Education Department were ex-officio members along with certain other non- official members nominated by the State Government. The Text Books Corporation was registered under the Madhya Pradesh Societies Act, 1959 and according to the provisions of that Act, it was to function on a no profit-no loss basis. The initial resources of the Text Books Corporation were provided by the State Government by giving a loan of Rs. 15 lacs for the purpose Of enabling it to commence its operations. The Text Books Corporation was by its very constitution controlled by the State Government and it was intended to function as an agency of the State Government. The work of printing and publishing of text books was, however not commenced immediately by the Text Books Corporation and until the end of the academic year 1970-71, the aforesaid 29 text books printed and published by the State Government continued to be prescribed and used in the Primary and Middle school classes.

So far as Higher Secondary education is concerned, it was regulated by the Madhya Pradesh Education Act, 1951 in the Mahakoshal region and by the Madhya Bharat Secondary Education Act, Samvat 2007 in the Madhya Bharat region. It is not necessary to refer to the provisions of these two statutes, for both of them were repealed by the Act of 1959 which was enacted by the Legislature of the new State of Madhya Pradesh after the reorganization of that State. Section 3 of that Act provided for the incorporation of the Board of Secondary Education and s. 4 laid down its composition. The powers of the Board were set out in s. 8, which provided inter alia that the Board shall have the power to prescribe courses of instruction in such branches of Secondary Education as it may think fit. Sections 18 and 19 constituted a salient and distinguishing feature of this Act. They were based on the recommendations made by the Secondary Education Commission, 1952-53 set up by the Government of India. The Secondary Education Commission suggested in its report that it was necessary that "all political and other extraneous influence must be eschewed in the selection of taxt books" for use in Higher Secondary classes and this was possible only if a high power committee was entrusted with this task. What should be the constitution of this high power committee and what functions must be assigned to it also formed the subject matter ,of recommendations made by the Secondary Education Commission. These recommendations formed the basis for the enactment of ss. 18 and 19. Section 18 provided for the constitution of a committee called the Text Books Committee which was to consist of distinguished independent persons who would be free from political and other extraneous influences and they included inter alia a sitting or retired Judge of the High Court or a District Judge, a member of the State Public Service Commission, a Vice-Chancellor of a university in the State and two leading educationists. The functions of the Text Books Committee were difined by s. 19 to be as follows "(1) to select text books for prescribed courses of instructions and syllabi for Secondary Education;

This was the position which obtained when the Madhya Pradesh Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973 (hereinafter referred to as the Act of 1973) was enacted by the Madhya Pradesh Legislature. This Act came into force on 23rd March, 1973 being the date appointed under sub-s. (3) of s.

1. The provisions of this Act are material and we may refer to them. Section 2, cl. (e) defines text book in the widest Possible terms and according to this definition, it means any book approved by the State Government in accordance with the syllabi prescribed under the Act for use for any examination conducted under the authority of the State Government or by the Board or held in an approved school or a school recognized by the Board and includes other books of study or instructional material such as maps, designs and other material of like nature approved by the State Government for any standard of primary education, middle school education or secondary education in accordance with the syllabi laid down under the Act. Section 3, sub-s. (1) provides that the State Government may from time to time in relation to primary education and middle school education and the Board may from time to time in relation to Secondary education, lay down syllabi and publish the same in such manner as may be prescribed and sub-s. (2) of s. 3 says that the syllabi laid down under the authority of the State Government in the case of primary education and middle school education and by the Board in the case of secondary education and in force immediately before the appointed day, i.e., 23rd March, 1973 shall be the syllabi laid down and published for the purpose of sub-s. (1) of s. 3. Then comes section 4 which deals with the prescription of text books according to syllabi laid down under s. 3. Since that is the section which is impugned in the present petition, we may reproduce it :

(3) As from the appointed day, no books other than the text books prescribed under sub-

section (1) or referred to in subsection (2) shall be used in any approved school or recognized school for imparting instructions in accordance with syllabi in primary education, middle school education or secondary education."

The State Government is also given power under s. 5 to undertake the preparation, printing or distribution of text books itself or to cause the text books to be prepared, printed or distributed through such agency as it thinks fit on such terms and conditions as may be prescribed. Section 6, provides that the text books prescribed by the State Government for any standard of secondary education shall be text books prescribed for such standard of secondary education in accordance with the syllabi and the Board shall be bound to accept the same when so prescribed by the State Government. Then follows section 7 which deals with delegation of power and the last is section 8 which confers power on the State Government to make rules for carrying out all or any of the purposes of the Act. It was common ground between the parties that no rules have so far been made by the State Government under this section.