Vikas Book Agencies and Ors.v. State of UP and Ors.
The High Court of Allahabad
1998 (33) ALR 299
Media Involved: Non- Fiction Book
Decided on:10.04.1998
MarkandeyKatju, J.
1. I had the advantage of perusing the judgment prepared by my learned brother Hon'ble D.K. Seth, J. However I regret my inability to agree with the same. I am of the opinion that the impugned Government order dated 3.12.97 annexure-2 to the writ petition is clearly illegal and deserves to be quashed. The petitioners are doing the business of publishing various kinds of books including text books for students, guide books and question banks. They have been carrying on this business for more than twenty years without any complaint as stated in paragraph-5 of the writ petition. The petitioners are aggrieved against the impugned Government order dated 3.12.97 annexure-2 to the writ petition. By the said order the State Government has banned the publication of guess papers/guide books/question banks related to various subjects in the High School and Intermediate examinations.
2. The ostensible reason given in the impugned Government Order for imposing this ban is to prevent leakage of the secrecy of the question papers and to develop the mental development of the students. However, I fail to understand how the impugned ban has anything to do with the secrecy of the question papers. Since more than fifty years in various schools, colleges and Universities such guess papers/guide books/question banks have been published and in fact they are of great help to the students as they can get an idea of the pattern and kind of questions which are usually asked in such examinations. For example, there may be solved question papers from 1985-1997 and by reading the questions in those papers and the answers (which are usually prepared by experts) a student gets to know the trend and types of questions which are asked in such examinations. In fact this is a great help to the students, and it has nothing to do with the secrecy of the paper. In fact there is no nexus between the ban and the ostensible object of preserving secrecy of the paper. There is no law that a student can only read the prescribed text books. He can in addition read material other than the prescribed text books also. This is a free country, and one can read what one likes unless there is a valid law banning the same. Hence, in my opinion, the impugned ban order is wholly arbitrary and hence violative of Article 14 of the Constitution. After the land-mark judgment of the seven Judges' Supreme Court decision in Smt. Maneka Gandhi v. Union of India and another: AIR 1978 SC 597, it is settled law that any Government action which is arbitrary is violative of Article 14 of the Constitution.
3. I do not also see how imposing such a ban will increase the mental level of the students. As I have already pointed out, in fact such guide books/solved papers/question banks are a great help even to the bright students. No doubt the students have to read the prescribed text books also, but I fail to understand what harm will be caused if in addition they read these guide books/solved papers/question banks. The student has to be given free choice of reading the material which he desires, provided it is not illegal.
Section 95 of the Cr.P.C. reads as follows:--
95. Power to declare certain publications forfeited and to issue search-warrants for the same--(1) Where--
(a) any newspaper, or book, or
(b) any document.
wherever printed, appears to the State Government to contain any matter the publication of which is punishable under Section 124A or Section 153B or Section 292 or Section 293 or Section 295A of the Indian Penal Code, the State Government may, be notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of Sub-Inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.
4. Thus, Section 95, Cr.P.C. imposes a ban on publication of obscene/seditious or criminal literature. Hence, in my opinion, normally there can be no ban on publication of any book unless there is a ban under Section 95 of Cr.P.C.
5. I have seen some copies of the publications by the petitioners and I do not find anything offensive therein or violative of Section 95, Cr.P.C. Rather I feel such books may be helpful to the students so that they can get to know the pattern of questions which appear in such examinations. I make it clear that if any paper in a forthcoming examination is also published either wholly or substantially then of course such publication can be banned or confiscated. However, it may be noted that the impugned ban is not regarding questions which may appear in the forthcoming examination but it bans all guide books/guess papers/question banks. This total ban is wholly illegal and I fail to say what it has to do with the secrecy of the examination.
6. An affidavit has been filed on behalf of the respondents by the Additional Secretary, Board of High School and Intermediate Education, U.P., Allahabad. In paragraph-2 of the same it is stated that last year a lot of students were caught red handed and one of the students was caught with 1997 Vikas Guide Book for English. I fail to understand how this is at all relevant. Obviously nobody is allowed to take a book or paper inside the examination hall, but that does not mean that books can not be published. In paragraph-4 of the supplementary affidavit it is stated that any book covering the entire syllabus in the nature of text books is not banned but only a book covering a portion of the syllabus and in nature of guide books is banned. In Mohinder Singh Gill and another v. The Chief Election Commissioner and others: AIR 1978 SC 851, it has been held by the Supreme Court that the validity of an order has to be judged by the reasons mentioned in the order, and it cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the impugned order it has not mentioned that only those books which deal with part of the syllabus alone are banned while those books which deal with the entire syllabus are not banned. A plain reading of paragraph-3 of the impugned Government order dated 3.12.97 shows that all guess papers/guide books/question banks are banned, and not only some of them. Hence, the affidavit cannot supplement the impugned order, and as such the impugned order is arbitrary and illegal.
7. Thus, I am clearly of the opinion that the said impugned order is arbitrary as it has nothing to do with the secrecy of the examination or with the level of the Education, and hence it is violative of Article 14 of the Constitution.
8. I am also of the opinion, that the impugned order is violative of Article 19(1)(g) of the Constitution. Article 19(1)(g) gives fundamental right to citizens to practice one's business, trade or profession. Book publication is also a business, and hence one has a fundamental right to pursue his business subject of course to the restrictions imposed by sub-section 6 of Article 19(1)(g) of the Constitution. Since the petitioners do the business of publishing books they have a fundamental right under Article 19(1)(g) of the Constitution to do so. It is settled law that once the petitioners have a fundamental right under any of the clauses in Article 19(1) of the Constitution then the burden is on the Government to show that the restriction is reasonable vide M/s. VrajlalManilal& Co. v. State of M.P. and others: AIR 1970 SC 129, and in M/s. Sukhnandan Saran Dinesh Kumar and another v. Union of India and another: AIR 1982 SC 902 (paragraph 19.). Thus while the burden is on the petitioners when they plead that Article 14 of the Constitution has been violated, the burden is on the State Government to show that the restriction is reasonable, once the petitioners are able to establish that their right under Article 19(1) has been violated, in the present case the respondents have been unable to show that the restriction is reasonable. In my opinion, the restriction is unreasonable as it has nothing to do with the secrecy of the examination and moreover, it bans all guess papers/guide books/question banks etc.
9. I make it clear that I am not saying that the Board can not prescribe the text books. All I am saying is that it is open to the book publishers to publish and sell books other than the prescribed text books, and the students are free to read this additional material if they so desire. In view of the above, I am unable to agree with my learned brother Hon'ble D.K. Seth, J., who has taken the view that the restrictions imposed by the impugned order do not violate Article 19 of the Constitution. Hence, I allow this writ petition. The impugned Government order dated 3.12.97 is quashed. No order as to costs.