Supreme Court Upholds State Government's Executive Power to Prescribe Textbooks but Strikes Down Notification for Lack of Prior Consultation with Board. Section 4 of 1973 Act Held Valid; Board's Prescription of Language Textbooks Declared Ultra Vires.

Writ petition under Article 32 of the Constitution of India challenging the validity of the Madhya Pradesh Prathmik Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973 and notifications prescribing textbooks, on grounds of violation of Articles 14 and 19(1)(g).

Petitioner sought declaration that Section 4 of the 1973 Act and the notifications dated 28 March 1973 and 24 May 1973 were void and unenforceable, and to restrain respondents from giving effect to the prescribed textbooks, thereby protecting his business as a publisher.

Petitioner's textbooks were not recommended or prescribed by the Board or State Government, while textbooks printed by the Text Book Corporation were prescribed, adversely affecting his business and allegedly violating his fundamental rights under Articles 14 and 19(1)(g).

Whether State Government could prescribe textbooks in exercise of executive power prior to the 1973 Act, and whether textbooks so prescribed were 'in force' immediately before the appointed day under Section 4(2) of the 1973 Act. Whether the Board of Secondary Education had power to prescribe textbooks on languages under Section 8 of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965, and whether the Board's notification dated 28 March 1973 was valid. Whether textbooks recommended by the Board could be considered as 'in force' prescribed textbooks under Section 4(2) of the 1973 Act. Whether prior consultation with the Board as required by the proviso to Section 4(1) of the 1973 Act was satisfied before issuing the notification dated 24 May 1973, and whether consultation with the Chairman alone sufficed. Whether Section 4 of the 1973 Act imposed unreasonable restrictions on the petitioner's right to carry on business and was violative of Articles 14 and 19(1)(g) due to unguided and unfettered discretion.

Petitioner contended that before the 1973 Act there was no statutory authority to prescribe textbooks, so the Text Book Corporation textbooks were not validly prescribed and could not be regarded as 'in force' under Section 4(2). Petitioner argued that the Board had no statutory power to prescribe language textbooks and the notification dated 28 March 1973 was ineffective because it was issued by the Board, not the State Government, which alone had power under Section 4(1). Petitioner submitted that textbooks recommended by the Board were not prescribed and therefore could not be 'in force' under Section 4(2). Petitioner asserted that the notification dated 24 May 1973 was void because there was no prior consultation with the Board as mandated by the proviso to Section 4(1). Petitioner contended that Section 4 conferred arbitrary and unguided discretion on the State Government and thus violated Articles 14 and 19(1)(g). State defended the prescriptions as valid executive action under Article 162 and argued that the Board's power to prescribe courses included power to prescribe textbooks, and that consultation with the Chairman was sufficient compliance with the proviso.

State executive power under Article 162 extends to matters within legislative competence even in the absence of legislation, provided the action does not infringe fundamental rights; a statutory board cannot exercise powers not conferred by the statute, either expressly or by necessary implication; there is a distinction between recommendation and prescription, with only prescribed textbooks carrying binding obligation; a proviso imposing a condition precedent must be strictly complied with, and consultation with the Board cannot be replaced by consultation with its Chairman; discretionary power conferred on the State Government to prescribe textbooks is guided by the statutory object and policy, and mere possibility of abuse does not render the provision unconstitutional.

The State Government could act in exercise of executive power in relation to any matter with respect to which the State legislature had power to make laws even if there was no legislation to support executive action; but such executive action must not infringe rights of any person. The Board is a creature of the statute and unless the statute creating it invests it with power to prescribe text-books so as to make it obligatory on the schools to adopt such text books and no other for study and teaching, it cannot claim to exercise such power. There is a basic distinction between recommendation and prescription of text books. Prescription of a text book carries with it a binding obligation to follow the text book. There is no such obligation when a book is merely recommended. The proviso to section 4(1) clearly lays down a condition for the exercise of power and unless this condition is satisfied the power cannot be exercised by the State Government.

The petitioner, a publisher, filed Writ Petition No. 1177 of 1973 directly in the Supreme Court under Article 32 of the Constitution, challenging the 1973 Act and notifications. No previous court proceedings are mentioned in the provided text.

• Madhya Pradesh Prathmik Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973: Section 3, Section 4(1), proviso to Section 4(1), Section 4(2), Section 4(3)
• Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965: Section 8
• Constitution of India: Article 14, Article 19(1)(g), Article 32, Article 162