The New Nation - Internet Edition

2008 BLD (HCD) 28

Syed Mahmud Hossain and - Farid

Ahmed, JJ

MD. ABU TAHER VS

Government of Bangladesh

And Others

We are all aware of the situation prevailing in the education sector and the Government so long has not taken any measure safeguarding the educational career of the students. The Government should address the issues prevailing in our education system because the standard of education is going down day by day. By issuing the impugned Annexure, the. Government has taken step to address a burning issue. Impugned Annexure shall be limited to the note-books, guide books and any other low quality books upto class VIII and not beyond.

Section 2 (6) of the Note-Books (Prohibition) Act, 1980 defines note-books as any printed book that contains notes, annotations, explanations, comments, references, answers or solutions to any questions on any subject or matter in, or translations of paraphrases of any part of, any text book but does not include any such book published by, or under the authority of, the Board.

If the definition of note-book is considered, then it appears that if any book printed contains notes, annotations, explanations, comments, references, answers or solutions to any question on any subject or matter in, or translations of any part of, any text book, it will come within the definition of note-book whatever may be its name such as guide book or 'low quality book' (wb¤§gv‡bi eB) I In addition, the definition of note-book is so wide and explicit that any book published in aid of or with reference to a text book will also come within the definition of note-book. (Para-19)

Section 15 of the National Curriculum and Text-Book Board Ordinance provides that no books which have not been approved as a text book by the Board or which has not been prepared and published by it shall be prescribed as a text book in any school. The object of the legislation was to achieve improvement in the quality of the text books. The prescribed text books for schools cannot be used or utilised in any manner without the permission of the Board. Using of the text book of the. Board without its permission amounts to defeating the right of the Board over its text book and such practice is not sanctioned by law. Sub-section (2) of section 15 provides that the copyright of all text books and other books published by the Board shall vest in the Board. Any work which consists of extracts from original either verbatim or with colourable alteration of language would constitute infringement of copyright. Note-Books (Prohibition) Act, 1980 applies only upto class VIII and not beyond. As .a result, the impugned Annexure is limited up to class VIII and not beyond. If the National Curriculum and Text-Book Board has any grievance against the notebooks or guide books of class IX and above, it may take recourse to other legal measures such as infringement of copyright.

(Paras-20& 22)

Dr. M. Zahir with Mr. Mustaque Ahmed Chowdhury, for the Petitioner.

Mr. Razik-Al-Jalil, DAG, for respondent No. l.

, Mr. Md. Moqbul Hossain, for respondent No.2.

Judgment delivered on March 13,2008.

Judgment

Syed Mahmud Hossain J: In this application under Article 102 of the Constitution of the People's Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned memo No. Shim/Sha: 10/8 (NCTB)-3 (Shafallya) 2002/1081 dated 10.12.2007 (Annexure-E) issued by respondent No. 1 should not be declared to have been issued without lawful authority.

2. The facts leading to the issuance of the Rule, in brief, are:

The petitioner as the President of Bangladesh Book Publishers and Sellers Association (in short BBPSA) has filed this Writ Petition, being aggrieved himself and also to protect the common interest of the members of the Association. The members of BSPSA are engaged in the business of publication, distribution and/or selling of books including guide-books for the use of the students of primary and secondary schools across the country and thus have been playing a significant role in meeting the demand of he youngsters for better education over years. In 1980, the Government passed The Note Books (Prohibition) Act, 1980 (in short the Act of 1980) to prohibit printing, publishing, Import, distribution and sale of note books for primary schools and secondary schools upto class VIII. Though printing of note books on text books is prohibited under section 3 of the Act. 1980, the Act did not restrict publication of guide books. The intention of the legislature not to include guide-books within the meaning of note books or prohibit printing thereof was subsequently reflected in the decision of the National Curriculum and Text Book Board (NCTB) in inviting from authors/publishers scripts of guide books on text books for class VI-VIII. The decision of the Board was communicated to the members of BBPSA by a memo dated 6.4.1991. Pursuant to the decision of NCTB, the members of BBPSA submitted scripts and after obtaining permission from the Board and upon depositing permission fees published guide books on text-books of various subjects. After 1995, though the Board did not officially invite scripts from the members of BBPSA any further, the publishers continued printing, publishing and selling guide-books on text books of various subjects for primary and secondary schools. There is a great demand for guide books among the students of primary and secondary schools. The law has not prohibited printing of such books. Suddenly, in 2007, the Government by memo dated 10.12.2007 issued by the Ministry of Education arbitrarily asked the Deputy Commissioners of various districts to take action to prevent publication, distribution and sale of, among others, guide books published for the students of primary and secondary schools all over the country. Pursuant to the decision of the Government, the administrative authorities are taking severe action in various districts despite the fact that printing etc of guide books is not prohibited under law or that no prior approval is required for publication of such books. The newspaper report shows that the Mobile Court burnt guide books in Kushtia district in the name of implementation of the decision of the Government. Apart from 'what was reported in the newspapers, the petitioner learnt about incidents which call for intervention by this Court.

3. Being aggrieved by the decision of the government as evidenced by the memo dated 10.12.2007 issued by the Ministry of Education, the petitioner was constrained to file the instant writ petition and obtained the present Rule Nisi.

4. Respondent No.2 filed an affidavit-in opposition controverting all the material allegations made in the Writ Petition. The case of respondent No.2, in short, is that as the note books/guide books have been treated as obstacle for development of intellect, the Government enacted "The Note Book (Prohibition) Act, 1980 which was published in' the official Gazette on 9.4.1980. The National Curriculum and Text-Book Board did never give any guideline for printing and publishing guide books for distribution and marketing. In 1992-1993, the National Curriculum and Text Book Board gave permission for printing some guide books for three years but when it found that those books caused hindrance for development of intellect, no permission was given for further printing of guide-books. After formation of new education curriculum and printing new text books in 1996, the alleged permission for printing guide books has become meaningless. The National Cuniculum and Text-Book. Board takes up various decisions occasionally for development of education. According to the decision of the Government, the administrative authorities have taken actions in different districts against printing and publication of prohibited guide-books, etc. The National Curriculum and Text-Book Board by the Act prohibited printing and publishing new guide books and did not accord permission. to anyone to print new note-books/guide books which are now being published beyond its knowledge and permission.

5. Dr. M. Zahir, learned Advocate for the petitioner, submits that under the provision of The National Curriculum and Text Book Board Ordinance, 1983, the Government has no power to take any action against the book publishers/sellers as exercised by respondent No. 1 and therefore, the impugned letter should be declared to have been issued without lawful authority. He further submits that The Note-Books (Prohibition) Act, 1980 only prohibits publication, sale, etc. of notebooks of the text books 6r part of text books upto Class VIII but does not empower the Government or the Board in any way to prohibit publication. distribution or sale of guide books or even note-books for students of Class IX and above. He then submits that prohibition of publication and/or sale of guide books is arbitrary, illegal and without lawful authority, inasmuch as' printing etc. of guide books was not prohibited by The Note-Books (Prohibition) Act, 1980, no prior permission or approval from the Board was required for such publication and/or sale. He also submits that under section 16 of The National Cuniculum and Text- Book Board Ordinance. 1983, the Government has been given power to call for information or report or any matter of the Board and that the section does not authorise to issue the impugned notice. He then submits that Note-Books (Prohibition) Act, 1980 prohibits distribution, sale, etc. of note-books or text books for primary schools and secondary schools upto class VIII but it appears from the impugned letter that the Government has passed a sweeping order prohibiting printing etc. of note-books published for the students of class IX and above.

6. Mr. Razik AI-Jalil, learned Deputy Attorney General, on the other hand, submits that any book 'published in aid of the text book shall be deemed to be a note-book as defined in section 2(b) of The Note-Books Prohibition) Act, 1980. He further submits hat the validity of this Act was challenged be fore this Court and that in the case of Bangladesh National Curriculum and Text Book Board Vs. AM Shamsuddin and Others, 1996) 48 DLR (AD) 184, the Appellate Division held that the Act was not unconstitutional. He lastly submits that any book published in aid of, and with reference to any text-book is to be treated as note-book and is prohibited by the Note Books Prohibition) Act. 1980.

7. Mr. Md. Moqbul Hossain, learned Advocate appearing on behalf of respondent No.2 submits that the Secretary, Ministry of Education has the authority to issue the impugned Annexure.

8. We have considered the Writ Petition, its annexure, the affidavit-in-opposition and its annexures.

9. To start with, let us have a look on the extract of the impugned Annexure-E as under:

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Avcwb AeMZ Av‡Qb †h, RvZxq wkvµg I cvV¨cy¯ÍK †evW© (GbwmwUwe) wkv gš¿Yvaxb GKwU RvZxq cÖwZôvb| G cÖwZôvb cÖv_wgK †_‡K D"P gva¨wgK ¯Íi cvV¨cy¯ÍK cÖKvk Kivi `vwqZ¡ cvjb K‡i Avm‡Q| RvZxq wkvµg I cvV¨cy¯ÍK †evW© gva¨wgK ¯Í‡ii cÖ‡Z¨K †kªYxi Rb¨ cÖ‡Z¨K wel‡qi GKwU K‡i eB cÖKvk K‡i| GQvov cÖwZ eQi RvZxq wkvµg I cvV¨cy¯ÍK †evW© 6ô †_‡K 10g †kªYx ch©šÍ gva¨wgK ¯Í‡ii 96 wU eB‡qi cÖvq 1 †KvwU 80 jvL Kwc mivmwi cÖKvk I wVKv`vi‡`i gva¨‡g mviv‡`‡k evRviRvZ K‡i v‡K| GQvov wewfbœ wel‡q †emiKvix cÖKvkK‡`i eBI RvZxq wkvµg I cvV¨cy¯ÍK †evW© KZ©"K hvh_ g~j¨vqb I Aby‡gv`‡bi ci cÖKvk Kiv n‡q _v‡K|

c~e© AwfÁZv †_‡K †M‡Q †h †Kvb †Kvb ¯‹z‡j Abby‡gvw`Z eB cvVm~Pxfy³ K‡i cov‡bv nq| GQvov I Amvay e¨emvhx KZ©"K bKj eB, †bvU eB, wb¤§gv‡bi eB evRviRvZ Kiv n‡q v‡K| G Kvi‡Y GKw`‡K †hgb wkvx©iv wZMÖ¯Í n‡"Q Aciw`‡K †Zgwb wkvi Afxó gvb AR©b Kiv m¤¢ve n‡"Q bv| Abby‡gvw`Z, wb¤§gv‡bi eB, †bvU eB Ges MvBW eB ¯‹z‡j cov‡bv Ges evRviRvZ Kiv eÜ Kiv cÖ‡qvRb| †Rjv ch©v‡q cvV¨cy¯ÍK wbe©vPb KwgwUi AvnevqK wn‡m‡e RvZxq wkvµg I cvV¨cy¯ÍK Aby‡gvw`Z I gvb m¤úbœ eBmg~n mKj gva¨wgK we`¨vj‡q cvV¨m~Pxfy³ Kivi wel‡q Ab¨ev‡ii b¨vq GeviI Avcbvi mnvqZv Kvgbv KiwQ| GKBfv‡e Dc‡Rjv ch©v‡q cvV¨cy¯ÍK wbe©vPb KwgwUi AvnevqK Dc‡Rjv wbe©vnx KZ©KZ©v‡K cÖ‡qvRbxq wb‡`©kbv †`qvi Rb¨I Avcbv‡K Aby‡iva Rvbvw"Q| Abby‡gvw`Z, wb¤§gv‡bi eB, †bvU eB Ges MvBW eB evRviRvZ eÜ Kivi Rb¨ cÖ‡qvR‡b †gvevBj †Kv‡U©i gva¨‡g AvBbvbyM e¨e¯‘v MÖnY Kivi Rb¨I Avcbv‡K we‡klfv‡e Aby‡iva KiwQ|

10. First of all, let us consider whether or not the Government has the power to issue the impugned notification. Sub-section 3 of section 3 of The National Curriculum and Text-Book Board Ordinance, 1983 provides that the Board shall, in the discharge of its functions, be guided by such directives and instructions as the Government may, from time to time give. Section 9(h) of the Ordinance provides that the functions of the Board shall be to do such other acts and things as may be assigned to it by the Government from time to time. Section 16 of the Ordinance provides that the Government may call for any information or report on any matter of the Board from the Chairman and it shall be the duty of the Chairman to furnish such information or report to the Government within a reasonable time or within the time specified by the Government.

11. Rule 4 (v) of Rules, 1996 provides that the Secretary shall be the Administrative Head of the Ministry/Division. He shall be responsible for its administration and discipline and for proper conduct of business assigned to it. He shall, also be responsible for careful observance of these rules in his Ministry/ Division, Attached Departments and Subordinate Offices. The Secretary shall keep the Minister-in-charge informed of the working of the Ministry/ Division.

12. Schedule 1 (Allocation of Business Among The Different Ministries and Division) of the Rules of Business in No. 15, Ministry of Education, at serial No. 36, provides that administration and control of subordinate offices and organisations under this Division shall be with the Ministry of Education and at serial No. 38 thereof provides that all laws on subjects allotted to this Division shall be with that Ministry.

13. It is admitted that the National Curriculum and Text-Book Board is under the Ministry of Education. Apart from the statutory power conferred on it, the Ministry has the controlling and supervising power over the National Curriculum and Text-Book Board which in discharge of its functions is guided by the directives and instructions of the Government. The learned Deputy Attorney General has referred to The Mobile Court Ordinance, 2007 and section 3 thereof provides as under:

ÒAvcvZZt ejer AvB‡b wfbœZi hvnv wKQyB _vKzK bv †Kb, GB Aa¨v‡`‡ki weavbvejx Kvh©Ki nB‡e|Ó

Sub-section 1 of section 5 of the Ordinance provides as under:

Ò†gvevBj †KvU© cwiPvjbvi gZv Ac©Y| (1) miKvi mgMÖ †`‡k wKsev †h †Kvb †Rjvq †h †Kvb miKvix Kg©KZ©v ev Gw·wKDwUf g¨vwR‡÷ªU‡K AvBb k"sLjv iv Ges Aciva cÖwZ‡iva Kvh©µg m¤úv`‡bi D‡Ï‡k¨ wjwLZ Av‡`k Øviv †gvevBj †KvU© cwiPvjbv Kwievi gZv Ac©Y Kwi‡Z cvwi‡e|Ó

14. In schedule No. 1 at serial No. 26 of The Mobile Court Ordinance, 2007, The Note-Books (Prohibition) Act, 1980 was incorporated.

15. The Ministry represents the Government. The Secretary, Ministry of Education being the administrative head of the Ministry, also the controlling Ministry of the National Curriculum and Text-Book Board, is authorised to see effective. Implementation of The Note-Books Prohibition) Act, 1980. Article 16 of the Constitution provides that the State shall adopt effective measures to bring about improvement of education. This fundamental state principle cannot be implemented unless effective measures are taken by the government. To salvage the education to some extent from the hands of the vested arter, The Note-Books (Prohibition) Act, 980 was enacted.

16. In the case of Bangladesh National Curriculum and Text-Book Board Vs. A.M. Shamsudtlin and Others, 48 DLR (AD) 184, the Appellate Division found that the Notbooks (Prohibition) Act, 1980 a valid piece of legislation.

17. The provisions of this Act cannot be Implemented without taking punitive action against offenders who are violating the Act with impunity. As a result, The Note-Book Prohibition) Act, 1980 was incorporated in the schedule of The Mobile Court Ordinance, 2007. The National Curriculum and Text Book Board does not have the authority to exercise power under section 5 of The Mobile Court Ordinance, 2007 and, as such, power exclusively lies with the Government. Therefore, the impugned notice as contained in Annexure-E to the Writ Petition was legally issued by the Secretary, Ministry of Education.

18. It is contended that 'guide book' does not come within the definition of note-book.

19. Let us see what the definition of 'note-book' is. Section 2 (6) of the NoteBooks (Prohibition) Act, 1980 defines notebooks as any printed book that contains notes. annotations, explanations, comments. references, answers or solutions to any questions on any subject or matter in, or translations of paraphrases of any part of any text book but does not include any such book published by, or under the authority of. the Board. If the definition of note-book is, considered. then it appears that if any book printed contains notes, annotations, explanations, comments, references, answers or solutions to any question on any subject or matter in, or translations of any part of, any tex book, it will come within the definition of note-book whatever may be its name, such as guide book or 'low quality book' (wb¤§gv‡bi eB) In addition, the definition of note-book is so wide and explicit that any book published in aid of or with reference to a text book will also come within the definition of note-book .

20. Section 15 of the National Curriculum and Text-Book Board Ordinance provides that no books which have not been approved as a text book by the Board or which has not been prepared and published by it shall be prescribed as a text book in any school. The object of the legislation was to achieve improvement in the quality of the text books. The prescribed textbooks for schools cannot be used or utilised in any manner without the permission of the Board: Using of the text book of the Board without its permission amounts to defeating the right of the Board over its text book and such practice is not sanctioned by law. Sub-section (2) of section 15 provides that the copyright of all text books and other books published by the Board shall vest in the Board. Any work which consists of extracts from original either verbatim or with colourable alteration of language would constitute infringement of copyright.

21. In the case of the West Bengal Board of Secondary Education Vs. The Standard Book Co. and Others 70 C.W.N. 1130 it is held:

"I can quite imagine that students who memorise the summaries and substances for getting through their examinations need not read the originals at all. This is a pernicious practice which should be put an end to in the general interest of education and advance of learning in our country."

22. It is contended that Note-Books (Prohibition) Act, 1980 applies upto class V III and that by misinterpreting the Act, punitive actions are being taken against notebooks, guide books, etc of classes beyond class VIII. Having considered the Act, in general, and the cause title thereof, in particular, we find that in the cause title, it is written in no uncertain terms, "An Act to prohibit printing, publication, import, distribution and sale of note-books on textbooks for primary schools and secondary schools up to Class VIII". Therefore, NoteBooks (Prohibition) Act, 1980 applies only upto class VIII and not beyond. As a result, the impugned Annexure is limited up to class VIII and not beyond. If the National Curriculum and Text-Book Board has any grievance against the note-books or guide books of class IX and above. it may take recourse . to other legal measures such as infringement of copyright.

23. Dr. M. Zahir draws our attention to many national daily newspapers bringing out regularly answers or solutions to questions 01" different subjects of text books for the students even upto class VIII and submits that those newspapers have been violating the Note-Books (Prohibition) Act without any objection whatsoever from any quarter. If the daily newspapers violate the Act. the Ministry or Board is at liberty to take action against them because nobody is above the law' but under it.

24. We are all aware of the situation prevailing in the education sector and the Government so long has not taken any measure safeguarding the educational career of the students. The Go||crnment should address the issues prevailing in our education system because the standard of education is going down day by day. By issuing the impugned Annexure. the Government has taken step to address a burning issue.

25. In this light of .the findings made before, the Rule is disposed of and the impugned Annexure shall be limited to the note-books, guide books and any other low quality books upto class VIII and not beyond. There is no order as to costs.