Case No: Civil Appeal Nos. 76-77 of 1993
Judge: Latifur Rahman ,ATM Afzal ,
Court: Appellate Division ,,
Advocate: Mr. Md. Aftab Hossain,Mr. Abdul Wadud Bhuiyan,MR. SR Pal,,
Citation: 48 DLR (AD) (1996) 184
Case Year: 1996
Appellant: Bangladesh National Curriculum and Text-Book Board
Respondent: AM Shamsuddin
Subject: Constitutional Law, Intellectual Property,
Delivery Date: 1996-5-12
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf, J.
Bangladesh National Curriculum and Text-Book Board
…………. Appellant (In Civil Appeal Nos. 76 & 77 of 1993)
Government of Bangladesh, represented by the Secretary, Ministry of Law & Justice, Parliamentary Affairs & another
………… Appellants (In Civil Appeal Nos. 16 & 17 of 1996)
AM Shamsuddin & others
…………. Respondents (In Civil Appeal Nos. 76 of 1993 & 16 of 1996)
Dewan Abdul Kader alias Mostafa Kamal & others
……….. Respondents (In Civil Appeal Nos. 77 of 1993 & 17 of 1996]
May 12, 1996.
Note Book Prohibition Act (Xii of 1980)
Section 2 (b)
The impugned Act does not completely debar publication of ‘note-books’, may be published either by the Board itself or under the authority of it in the same way as itself or under the authority of it in the same way as text-books are approved or prepared and published by it for schools….. (20)
Constitution of Bangladesh, 1972
The right to freedom of speech and expression as claimed by the writ petitioners does not extend to the right of printing and publishing of ‘note-books’ on ‘text-books’ prepared and published by the Text Book Board under statutory authority. The Court was not justified in declaring the impugned Act to be ultra vires of Article 39(2) of the Constitution.…. (32)
Cases Referred to-
Jang Bahadur vs. Principal, Mohindra College AIR (38) 1951 Pepsu 59; Hamdard Dawakhana vi. Union of India AIR 1960 (SC) 554. Chamarbaughwalla, AIR 1957 (SC) 628; West Bengal Board of Secondary Education vs. Standard Rook Co., 70 CWN 1130; Romesh.Thappar vs. State of Madras, AIR 1950 (SC) 124; Express Newspaper Limited vs. Union of India, AIR 1958(SC) 578; Sakal Papers Ltd. and others vs. Union of India 1962 (SC) 305.
Md. Aftab Hossain, Advocate-on-Record — For the Appellant (In Civil Appeal Nos. 76 & 77 of 1993)
AW Bhuiyan, Additional Attorney-General instructed by B Hossain, Advocate-on-Record-For the Appellants (In Civil Appeal Nos. 16 & 17 of 1996).
SR Pal, Senior Advocate, instructed, by Md. Nowab Ali, Advocate-on-Record—For the Respondent (In Civil Appeal Nos. 76 of 1993).
SR Pal, Senior Advocate, instructed, by Md. Nowab Ali, Advocate-on-Record — For the Respondent Nos. 2-7 (In Civil Appeal Nos. 77 of 1993)
SR Pal, Senior Advocate, instructed by Md. Nowab Ali, Advocate-on-Record — For the Respondents (In Civil Appeal Nos. 16 & 17 of 1996).
AW Bhuiyan, Additional Attorney-General and B Hossain, Deputy Attorney-General — Amicus Curiae (In Civil Appeal Nos. 76 of 1993).
Ex-parte — Respondent No. 1, 8-9 (In Civil Appeal Nos. 77 of 1993)
Ex-parte — Respondents No. 2 & 3 (In Civil Appeal Nos. 76 of 1993)
Civil Appeal Nos. 76 of 1993 and 77 of 1993.
(From the judgment and order dated August 11, 1993 passed by the High Court Division in Writ Petition Nos. 561 of 1987 and 321 of 1987 respectively).
Civil Appeal Nos. 16 of 1996 and 17 of 1996.
(From the judgment and order dated August 11, 1993 passed by the High Court Division in Writ Petition Nos.561 of 1987 and 321 of 1987 respectively).
ATM Afzal CJ.
By the impugned Judgment and order dated 11 August 1993 passed in Writ Petition Nos. 321 and 561 of 1987, the High Court Division declared the Note-Books (Prohibition) Act, 1980 (Act No. XII of 1980), hereafter called the Imp Act, to be ultra vires of Article 39(2) of the Constitution and accordingly, struck it down as unconstitutional. The High Court Division, however, granted a certificate under Article 103(2)(a) of the constitution certifying that the cases involved a substantial question of law as to the interpretation of the Constitution particularly Article 39(2) thereof.
2. Bangladesh National Curriculum and Text Book Board, respondent No. 3, in the said writ petitions, filed Civil Appeal Nos.76 and 77 of 1993, against the impugned judgment and order passed in the two writ petitions that were, however, barred by 16 days each.
3. The Government was also made a respondent in the writ petitions which contested the same by filing separate affidavits-in-opposition. It appears from the impugned judgment that because of the importance of the matters, the learned Attorney- General was called upon by the Court to argue the case on behalf of the respondents which he accordingly did. It was on the prayer of the learned Attorney-General that the High Court Division granted the certificate under Article 103(2)(a) of the Constitution. Surprisingly, however, no appeal was filed on behalf of the Government as required under Order XII rules 2 and 3 of the Rules of this Division, 1988. The learned Attorney-General, the impugned judgment shows, also prayed for stay of the operation of the said judgment pending securing of stay order from this Division and the prayer was allowed for two weeks. On the prayer of the appellant, Text Book Board, the operation of the impugned judgment of the High Court Division was stayed by this Division till 11 November 1993 and by a subsequent order dated 24 November 1993 the operation of the impugned judgment was stayed till disposal of the appeals.
4. As the appeals appeared in the daily cause list for hearing, Mr. Humayun Hossain Khan, learned Advocate, who represented the appellant, Text Book Board, made prayers for adjournment on several occasions which were granted. Having regard to the fact that an interpretation of an article of the Constitution is involved in these appeals, we requested the learned Attorney-General to be present and assist us at the hearing of the appeals. The learned Additional Attorney-General always appeared whenever the matters were in the cause list for hearing. On 1-4-1996 Mr. Humayun Hossain Khan, learned Advocate, as usual, prayed for an adjournment which was granted. On 8-4-1996 when the appeals again appeared for hearing Mr. Humayun Hossain Khan was not to be found this time, and Mr. Md. Aftab Hossain, learned Advocate-on- Record, appearing for the appellant, Text Book Board, bluntly submitted that he has no instruction to proceed with the appeals. Since a question of vires of a law based on an interpretation of a fundamental right was involved in the appeals we decided to hear the learned Additional Attorney- General after giving him an opportunity to file regular appeals on behalf of the Government and also because the sudden representation made by Mr. Md. Aftab Hossain, learned Advocate-on-Record, meant that there were no appeals before us for hearing.
Mr. SR Pal, learned Advocate for the writ-petitioner-respondents, very fairly submitted that the Government may be allowed to file petitions of appeal to keep the record straight and also because it was at the instance of the learned Attorney-General that the High Court Division has granted the certificate as aforesaid.
5. The learned Additional Attorney-General has now filed two appeals by the Government, Civil Appeal Nos.16 and 17 of 1996, which are (for obvious reasons) barred by 1073 days each, Applications for condonation of the said delay have been filed. In the circumstances of the case, the delay is condoned. The concise statements filed by the writ-petitioner-respondents in Civil Appeal Nos.76 and 77 of 1993 have been considered as such statements in the Government appeals on the prayer of Mr. SR Pal. He has also filed further concise statements after hearing the submission of the learned Additional Attorney-General.
6. In order to appreciate the point at issue in these appeals we may now turn to the facts of the case which are nearly common. The writ-petitioner-respondents are engaged in the business of publication, distribution and selling of books including ‘note-books’ for primary and secondary schools upto class VIII. They stated in their respective writ petitions that the Government passed the impugned Act purporting to prohibit printing, publishing, import, distribution and sale of ‘note-books’ on ‘text-books’ for primary schools and secondary schools upto class VIII. Immediately after passing of the said Act different Associations of the publishers, printers and sellers of ‘note-book ‘text-books’ started appealing to the Government against promulgation of the said Act and for repealing the same on consideration of the consequences upon the student community and for the matter of that upon the society as a whole. National press also drew the attention of the Government by publishing editorials and articles on the subject but without any result. In the course of their business the respondents published for sale various ‘note-books’ for different classes of the above category which remained unsold in their library and godown. The Bangladesh Pustak Prokashak O Bikreta Samity in its meeting held on 13-3-1981, however, passed a resolution requesting all its members to abide by the prohibitory order of the impugned Act because the various representations made to the Government were not successful till then.
7. The respondents and others filed writ-petitions in 1981 challenging the impugned and Rules were issued in those matters but with the promulgation of Martial Law on 24 March l982 the said writ petitions abated. Upon the withdraw Martial Law on 10 November 1986 and revival the Constitution restoring the fundamental rights, the respondents filed the present writ petitions Writ Petition Nos. 321 and 561 of 1987 respectively.
8. The respondents submitted that the ‘note-books’ published by them provide easy guide the students, particularly those who cannot afford I have the benefit of private tuition and as such publication of ‘note-books’ is very much useful t effective for the student community in general. They submitted that the restriction imposed upon publication and sale of the ‘note-books’ in question is violative of the fundamental rights guaranteed the Constitution. They also submitted that they are in danger of being ruined financially because of the huge stock of ‘note-books’ that they have already before the impugned Act came into force.
9. The appellants, namely, the and the Bangladesh National Curriculum and Text Book Board, respondent Nos. 1, 2 3 respectively in the writ-petitions contested the same by filing two separate affidavits-in-opposition. The facts alleged by the writ-petitioners were generally denied and the submissions made were stated to be misconceived.
10. It appears from the impugned judgment that the main thrust of argument on behalf of the writ-petitioners was that the restriction imposed upon publication and sale of the ‘note-books’ in question by the impugned Act was violative of the right to freedom of speech and expression and also freedom of the press as provided under Article 39(2) of the Constitution. The learned Attorney-General, on the other hand, argued that the publication and, sale, etc. of ‘note-books’ are not included within the meaning of freedom of speech and expression and of the press as occurring in the said Article 39(2), that even if they were so, the impugned Act putting restriction on publication and sale of note-books was lawfully passed in the interest of decency and morality and that the restriction imposed by the impugned Act being really in relation to the trade and business of the writ-petitioners, they could not complain of any violation of such right provided under Article 40 inasmuch as such restriction can always be imposed by law.
11. Having regard to the definition of ‘note-books’ in the impugned Act the learned Judges upon a consideration of various authorities from American and Indian Jurisdictions, none having been found in our own, concluded that restriction on publication of the ‘note-books’ means a restriction on the right to freedom of speech, etc. as guaranteed under Article 39(2) of the Constitution. Having further found that no part of the impugned Act can be saved the whole Act was struck down as unconstitutional being in conflict with Article 39(2).
12. The learned Additional Attorney-General submitted in support of the appeals that the view taken by the High Court Division with regard to the right of freedom of speech and expression and freedom of the press as including the right to print and publish note-books generally is not and cannot be disputed. But the question, he submitted, is: Can the publisher-respondents claim that right in respect of the text-books published by, or under the authority of, the School Text Book Board? The teamed Additional Attorney-General submits that their right cannot and does not extend that far in the particular facts of the present cases. He has, however, stated that this argument, which is basic, was not pointedly brought to focus in the High Court Division and, as such, it did not get much or any consideration by the learned Judges. In elucidating his argument, the learned Additional Attorney-General submitted that under the East Bengal School Text-Book Act, 1954 the School Text-Book Board was the sole authority to prescribe text-books for primary and secondary schools and this was done to improve the quality of text-books in those schools. The Board had statutory control over the text-books prepared and published or approved by it and by necessary implication, he submits, this control included the power to protect its text-books from being used (or abused) in the production of ‘note-books’ without the permission of the Board and the right claimed by the publisher-respondents constitutes an encroachment upon the statutory domain of the Board which cannot be and does not qualify to be a fundamental right of freedom of speech and expression (of the respondents). Mr. Bhuiyan further submits that the ‘note-books’ published by the respondents also tend to infringe upon the copy right of the Board in their text-books and thus their claim of fundamental right under Article 39(2) is misconceived. Finally, Mr. Bhuiyan submits that the High Court Division ought to have held from the statements made in the writ-petitions that the respondents were in essence claiming a right to conduct their business of publishing and selling ‘note-books’ in which they were engaged from long before attracting Article 40 and, in such view of the matter, the impugned Act could not be declared ultra vires inasmuch as restriction can always be imposed by law in relation to any profession, occupation, trade or business.
13. Mr. SR Pal submits in reply that he entirely supports the impugned judgment as the same is based upon a correct appreciation of the right to freedom of speech and expression which was advocated by himself with authorities from. American and Indian jurisdictions and accepted, rightly, by the Court. He repeatedly said that he has nothing to add except saying that the Text Book Act, 1954 has no materiality to the question at issue, that the restrictions to the rights under Article 39(2) are only those specifically mentioned therein, that the copyright of the Board in their text-books is not infringed by the publication of note-books thereof and that the claim of right also to do business cannot defeat the right of the respondents under Article 39 (2), for, the principle is, that if violation of more than one fundamental right is made the basis of a (writ) petition, the finding of violation of any one of
them is sufficient to strike down and/or quash the offending law or action. For the purpose of easy reference the relevant portion of the impugned Act is reproduced below:
“Whereas it is expedient to prohibit printing, publication, import, distribution and sale of note-books on text-books for primary schools and secondary schools up to Class VIII.
It is hereby enacted as follows:
1. Short Title.— This Act may be called the Note-Books (prohibition) Act, 1980.
2. Definitions.— In this Act, unless there is anything repugnant in the subject or context,
(a) “Board” means the Bangladesh School Text-Book Board established under the School Text Book Act, 1954 (EP Act XIV of 1954):
(b) “Note-Book” means 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 paragraphs of any part of, any text-book but does not include any such book published by, or under the authority of, the Board, and
(c) “Text-Book” means any text-book for primary school or secondary schools up to class VIII published by, or under the authority of, the Board.
3. Prohibition of printing etc., of note-books.- (1) No person shall print, publish, import, sell, distribute or in any manner put into circulation or keep for printing, publication, sale, distribution or circulation of any note-book.
(2) Nothing in sub-section (1) shall apply to any notes, comments or explanations dictated or given in writing by a teacher in a class for the use of the students of that class:
Provided that such notes, comments or explanations shall not be reproduced in writing or otherwise and circulated for the use of any other person.
4. Penalty.-(1) Whoever contravenes any provision of section 3 shall be punishable with rigorous imprisonment for a term which may extend to seven years, or with fine which may extend to twenty-five thousand Taka, or with both.
14. Since the constitutionality of the impugned Act has been called in question on the ground of alleged violation of a fundamental right as provided in Part III of the Constitution it will be necessary to ascertain the true nature and character of the said Act, the area in which it is intend to operate, the objective it is intended to achieve and the mischief it is designed to suppress. In examining the constitutionality of a statute a well-known principle has to be borne in mind that there is always a presumption in favour of the constitutionality of an enactment. In order to make the ascertainment with regard to the impugned Act as stated above it will be necessary and legitimate also to take into consideration the background facts and surrounding circumstances in which it was brought about.
15. It will be seen that the central matter in the impugned legislation relates to (section 3) prohibition of printing, publishing and selling, etc, of ‘note-books’ on ‘text-books’ for primary school and secondary schools upto class VIII. ‘notebook’ means (Section 2(b)) any printed book that contains notes, annotations, explanations, comment, references, answers or solutions to any question on any subject or matter in, or translation paragraphs of any part of, any text-book but does not include any such book published by, or under the authority of, the Board. “Text-Book” means (s.2(b)) any text-book for primary schools or secondary schools up to class VIII published by or authority of the Board (emphasis added).
16. Section 4 of the Act provides for penalty for any contravention of any provision of section 3.
17. In order to understand the full import of the impugned legislation one has, of necessity, to refer to the law by which text-books are regulated in the primary and secondary stages of education. With the object of achieving improvement in the quality of the text-books in those stages, the East Bengal Text-Book Act 1954 (East Bengal Act No. XIV of 1954) was enacted under which there was provision for constituting a School Text-Book Board, One of the functions of the said Board was to approve text-books and also to prepare, publish and sell text-books for the schools. Section 6 of the said Act provides that no book which has 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.
18. The School Text Book Act 1954 was repealed and substituted by the National Curriculum and Text-Book Board Ordinance 1983 (Ordinance No. LVII of 1983). Under the said Ordinance provision was made for establishing the National Curriculum and Text-Book Board. The functions of the Board included those of the Text-Book Board under the repealed Act relating to approval and/or publication, distribution and sale of text-books. Section 15 of the Ordinance corresponds to section 6 of the repealed Act which provides that no book which has 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 and ‘text-book’ means a text-book for any class of any school.
19. It is clear from the aforesaid provisions that the Text-Book Board has been allowed by specific legislation to retain control over the text books which are to be read in the schools as mentioned in the said legislation. No book which has not been approved as a text-book by the Board or which has not been prepared and published by it can qualify as a text-book for reading in the schools. The object of the legislation, it has been noticed, was to achieve improvement in the quality of the text books. The gist of the argument of the learned Additional Attorney-General, as we have understood him, is that the prescribed text-books for schools cannot be used or utilised in any manner without the permission of the Board as would go to erode its control over the text-books. The learned Additional Attorney-General submits that the claim of the respondents of the right to freedom of speech and expression does not extend to using of the text-books of the Board without its permission thereby defeating the right of the Board over its text books which is sanctioned by law.
20. We think there is considerable substance in the submission of the learned Additional Attorney-General. The Text-Book Board has been vested with the authority to approve and/or prepare and publish text-books for schools and a book which is not so approved or prepared and published by the Board shall not be prescribed as a text-book in any school. There cannot be any doubt that the respondent-publishers have no right to publish such text-books and they themselves do not lay any claim to such right. Right to freedom of speech and expression does not give them that freedom. Now it has been seen what a ‘note-book’ means under the impugned Act. Any printed book that contains notes, annotations, explanations, comments reference, answers or solutions to any question on any subject or matter in, or translations of paragraphs of, any part of any text-book comes within the definition of ‘note-book’. We have examined some of the ‘note-books’ which have been referred to in the writ petitions. We have also examined some of the corresponding text-books. It appears to us and it will not be incorrect to say generally that the ‘note-books’ in question have been prepared and published with the subject of making the text-books, according to the writers and publishers of the same, more easily understandable to the students concerned. Review or a commentary on a published book which cannot be denied because of the guaranteed right to freedom of speech and expression and which Mr. Pal has specially laid emphasis on, is far from what a note-book is and consists of. A note-book, it is found, is in effect and substance a merely degenerated presentation of the same text-book, the maintenance of the quality of which is statutorily vested in the Text-Book Board. In the name of freedom of speech and expression the respondents will certainly frustrate the purpose of the law regulating the quality of the text-books by the Text-Book Board. Their claim of right of freedom of speech and expression in the circumstances will directly offend the statutory provision and there cannot be any right, much less any fundamental right, which will inspire a violation of the law. This proposition, to our mind, is absolutely basic and there cannot be any two opinions about it that a fundamental right can never be invoked for violating any provision of law or other man’s right under the law. It is true that under Article 39(2) it has been specifically mentioned as regards the grounds upon which reasonable restriction may be imposed by law on the right of citizens to freedom of speech and expression, but the basic assumption for the exercise of the said right is and must be that it may not offend any law or any right of other person under the law. To give a free hand to the publishers to publish any kind of ‘note-book’ on ‘text-book’ without any control from the Board is to defeat the very purpose for which the Text-Book Board was vested with the authority to prepare and publish or approve text-books for schools. The mischief which was sought to be suppressed by the School Text-Book Act and the succeeding Ordinance of 1983 will be thrown to the risk of being sidelined altogether in the hands of the publishers whose only motive is to earn profit, if they were to have absolute freedom in publishing ‘note-books’ invoking the right to freedom of speech and expression. The learned Additional Attorney-General has rightly argued that the control which has been put on the publication of ‘note-books’ under the impugned Act was apparently by way of a continuation of the same purpose which is there under the Text-Book Act i.e. keeping control of the Board over the text-books prepared and published by it. The impugned Act does not completely debar printing and publication of ‘note-books’ but it only provides that a ‘note-book’ may be published either by the Board itself or under the authority of it inasmuch the same way as text-books are approved or prepared and published by it for schools.
21. Drawing support for his submission, the learned Additional Attorney- General, has referred to some decisions from the Indian jurisdiction and out of them we find particularly one decision quite appropriate which is in line with the view that we have expressed above. It was a case, Jang Bahadur vs. Principal, Mohindra College AIR (38) 1951 Pepsu 59, where the petitioner, a college student, was rusticated by the Principal of the College on the ground that he had issued and printed a hand-bill attacking the education policy of the Union Government and condemning the authorities of the College for what he considered to be their anti-nationalistic and communalistic outlook and for encouraging hooliganism, moral degeneration and wide-spread intrigue, etc. It was argued on behalf of the petitioner in an application under Article 226 of the Indian Constitution that the petitioner’s right to freedom of speech and expression was violated by the action taken by the Principal. The learned Chief Justice delivering the judgment singly observed that apart from the qualifications enumerated in clause (2) of Article 19 which correspond to the restrictions mentioned in Article 39(2) of our Constitution, the right to freedom of speech and expression is sub to the qualification that the exercise of the right by citizen should not infringe the rights of others By way of example it was said that the right to move freely throughout the territory of India and the right to reside and settle would not include the right to move and reside and settle in a private property someone else. It was further observed that the hand-bill issued by the petitioner offended the ordinary law of the land which could not be permitted by invocation of the right to freedom of speech and expression. The petition was accordingly dismissed.
22. In the case of Hamdard Dawakhana vs. Union of India AIR 1960 (SC) 554, the question issue was whether an advertisement designed promote the sale of certain medicines was protect under the fundamental right to freedom of speech al expression (Article 19(1)(a). The constitutionality of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 was called in question which was passed to control the advertisements of drugs in certain cases, to prohibit the advertise for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected thereto. It was observed in that case that when enactment is challenged as violating a fundamental right, it becomes necessary to ascertain its tea nature and character i.e., its subject-matter, the area- in which it is intended to operate, its purport and intent, and to do this, it is legitimate to consider the history of the legislation, the mischief it is intended to suppress, the remedy proposed by the legislature the true reason for that remedy and the surrounding circumstances and conditions.
23. It was held in that case that even though an advertisement is no doubt a form of speech but the true character is reflected by the object for promotion of which it is employed. When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for object is not propagation of ideas—social, political or economic or furtherance of literature or human thought, In holding that an advertise commending drugs and substances as appropriate cure for certain diseases is not an exercise of right of freedom of speech, reference was made to the case of Chamarbaughwalla, AIR 1957 (SC) 621, where it was said that activities under-taken and carried on with a view to earning profits e.g., business of betting and gambling will not be protected as (ailing within the guaranteed right of carrying on business or trade. Freedom of speech, it was held, goes to the heart of the natural right of an organised freedom-loving society to “impart and acquire information about the common interest”. If any limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Article 19 (1)(a) but if all it does is that it deprives a trader from commending his wares it would not fall within that term, it was further observed.
24. By analogy the principles followed in that decision are found to support the view we are taking in the present case. Publishing of a ‘note-book’ in the facts and circumstances, as noticed above, cannot be said to be an exercise of the right to freedom of speech and expression inasmuch as what a ‘note-book’ does is merely to reproduce a text-book in a different manner and the motive is nothing but making profit only. The immediate object is not to impart any idea or information but to make money at the cost of the Board. Further, it has been noticed that a ‘note-book’ operates to undo the mischief which the School Text-Book Act sought to suppress and is thus destructive of the right of the Board.
25. It is not disputed that the Text-Book Board has copyright in the text-books prepared and published by it. There will obviously be an infringement of the said copyright if somebody reproduces the text-books in any material form. It will be seen that a ‘note-book’ is nothing more than a ‘text-book’ put in different but material form. A note-book, it has been found, is not an expression of ideas or opinion or comment with regard to the contents of the text-book but it is merely a presentation of the same text-book in a different manner and form. The impugned Act by putting the restriction on printing, publishing, etc. of note-books may thus well be construed as imposing reasonable restriction against the possibility of the copyright of the Text-Book Board being infringed as would be permissible under Article 39(2). Viewed in this perspective it will be difficult to hold that the impugned Act is unconstitutional not being covered by the terms of Article 39(2).
26. In this connection our attention has been drawn to the case of West Bengal Board of Secondary Education vs. Standard Book Co., 70 CWN 1130, where the Board successfully prayed for an order of injunction against the defendant-respondents restraining them from printing or publishing note book of an English text-book for class VI alleging infringement of its copyright in the original text-book. It is interesting to note that the West Bengal Board in its text-book mentioned:
“Copyright of the Book and every part of it, including the arrangement, illustrations, etc. is exclusively reserved to the West Bengal Board of Secondary Education. No part of the book can be printed or published or no explanatory book or any abridgement thereof or what is commonly known as note-book can be prepared without the express written permission of the West Bengal Board of Secondary Education. Any infringement of the copy-right or preparation of notes of the book in any manner would be severely dealt with and make such publishers liable to damages.”
27. Two-fold objection was raised by the Board—(1) that in making the summaries of the prose-writing and verses, the author of the note-book has made adaptations from and substantial use of the plaintiffs material and 2) that the literal translations into Bengali of these prose writing and verses could never be included in the notes without the plaintiffs permission.
28. The learned Single Judge observed that the general principle relevant to that case seemed to be that if in making those summaries the writer of the notes had made substantial use of the copyright material the publication of the “notes” should be prevented. Upon comparing the original texts with the summary and substance in the ‘notes’, the learned Judge observed that the Board’s allegation that the ‘notes’ was published so that the students may only read the ‘notes’ and not the text-book was justified. He went on to say:
“I can quite imagine that students who memorize 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.”
29. It will be seen that what the West Bengal Board had achieved by using a little imagination in clearly stating the terms of its copyright and other rights in the text-book has been sought to be achieved by the impugned Act by putting restriction on printing and publication of note-books. The principle, however, governing that case and the present cases is basically the same. The writers and publishers of note-books made adaptations from and substantial use of the Board’s material, namely, the text-books, which they cannot do without its permission because in that case they will be up against the law and the rights of the Board as already indicated before.
30. The Government in its affidavit- in-opposition stated that the text-books published by the Board are correct with proper annotation, explanation and appropriate word-scholars of the country and in that view the publication of note-books by the writ-petitioners was unnecessary, superfluous and a taxation upon the student community causing national loss. It was stated that the impugned Act was enacted after much deliberation in the interest of the students to save them from the bad effects of trash note-books published by the profit-hunting publishers. It was also alleged that the note books are full of tissues of falsehood, mistake of facts, wrong annotation and incorrect explanation which are far from the text-books and the effect upon the students is that they are creating confusion and causing serious psychological setback and obstruction in the pursuit of true knowledge. These are then the mischief which the legislature wants to get rid of by making the enactment in question. There does not seem to have been any reply given to the aforesaid affidavit-in-opposition. The Court cannot ignore the requirements of the situation which prompted the passing of the impugned Act.
31. The last branch of the submission of the learned Additional Attorney-General was to the effect that the writ-petitioner-respondents’ claim of right as disclosed in their writ petitions was in essence in respect of a right to conduct trade or business and the right to freedom of speech was claimed only incidentally. To refer to the writ-petitions, which are more or less similar, it will be seen that in Writ Petition No. 321 of 1987 it was stated that the various ‘note-books’ published by the writ-petitioner remained unsold in his library and godown. All these books were published before the promulgation of the impugned Act and those have been ready for sale.
The writ-petitioner had in stock about 20,000 note-books on different text-books in Bangla Bazar which could not be sold in view of the prohibition imposed by the impugned Act. It was claimed that the writ-petitioners were highly prejudiced and put to financial ruin by reason of passing of the impugned Act. Although it has been alleged in the grounds taken in. the writ-petition that the impugned Act’ violative of the fundamental right to freedom of speech and expression and guaranteed by Article 39, the main burden of the writ-petitioners’ case disclosed in the writ petitions was that their trade and business of printing, publication and sale of ‘note-books’ on ‘text-books’ stood to suffer irreparable loss on account of the impugned Act, The argument in the High Court Division was based mainly or only on Article 39 but the facts stated’ the writ petitions primarily attract Article 40 which, among others, speaks of the right to conduct a lawful trade or business subject to any re imposed by law. If that be the grievance of respondents, which prima facie appears to be so then they cannot object to the impugned Act because undisputedly restriction may be imposed by law in the conduct of trade and business.
32. We would like to observe before parting that the decisions referred to in the impugned judgment from foreign jurisdictions and t principles enunciated therein as to the right of freedom of speech, expression and of press are not in dispute. The right to freedom of speech expression, it has been long and well-settled, is a very valuable right and the fulfillment of the individual and the society as well depends largely upon the cultivation of the said right and any infringement thereof is permitted only as provisions under Article 39(2). In the facts of the present case however, we have come to the conclusion that the right to freedom of speech and expression as claimed by the writ-petitioners does not cover or extend to the right of printing and publishing of ‘note-books’ on ‘text-books’ prepared and published by the Text Book-Board under statutory authority. We, therefore, hold that the High Court Division was not justified in declaring the impugned Act to be unconstitutional being ultra vires of Article 39(2) of the Constitution.
33. The appeals filed by the Bangladesh National Curriculum and Text-Book Board, Civil Appeal Nos. 76 and 77 of 1993, having not been pressed are hereby distressed. The Government appeals, Civil Appeal Nos. 16 and 17 of 1996, are allowed upon condoning the delay in filing the said appeals. There will be no order as to cost.
Mustafa Kamal J.
I have gone through the judgment delivered by my Load the Chief Justice and by my learned brother Latifur Rahman, J, I concur with the judgment delivered by my Lord the Chief Justice.
Latifur Rahman J.
As I find it difficult to agree with the judgment of my Lord, the Chief Justice, I am writing out a separate judgment giving my own reasons.
36. These two certificated appeals, being Civil Appeal Nos. 76 and 77 of 1993, arise from two writ petitions, namely, Writ Petition Nos. 321 and 561 of 1987 filed by the respondents, who are publishers, printers and book sellers of various books including note-books printed and published by the Bangladesh School Text Book Board.
37. At the final hearing of the above two appeals, Civil Appeal Nos. 16 and 17 of 1996 were filed by the Government of Bangladesh.
38. In those two writ petitions, the respondents challenged the Note-Books (Prohibition) Act, 1980, briefly, the impugned Act, as being ultra vires of the Constitution being in contravention of Article 39 of the Constitution. The Rules in both those writ petitions were made absolute and thereafter the Certificate was granted under Article 103(2)(a) of the constitution.
39. Before the High Court Division the Ministry of Law, the Ministry of Education and the School Text Book Board appeared as respondent Nos. 1, 2 and 3 respectively and their contentions were that the impugned Act is not violative of the provisions of Article 39(2) of the Constitution.
40. To understand the constitutional validity of the impugned Act I will refer to the relevant earlier enactment on the subject herein below.
41. The East Bengal School Text Book Board Act, 1954 was promulgated on 23rd September, 1954 for the establishment of a School Text Book Board with a purpose to achieve improvement in the quality of text-books of the Primary and Secondary stages in Bangladesh. The relevant sections with which we are concerned are sections 5, 6 and 8.
Section 5 speaks of many other functions of the Board including as those mentioned in clauses (a) and (b) as under:
(a) Approval of text books of school;
(b) Preparation, publication and sale of text-books for schools.”
Section 6 reads as follows:
“No book which has 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.”
Section 8 provides for demand of royalty from the publisher of the text-book which reads as follow-
“The Board may demand any such royalty, for approval of a book as a text book, from its publisher, as may be determined by the Board.”
42. The East Bengal School Text Book Board Act of 1954 was repealed by the National Curriculum and Text-Book Board Ordinance, 1983 (Ordinance No. LVII of 1983) on 2nd October, 1983, wherein clause (1) of section 15 reads as follows:
“(1) No book which has not been approved as a text book by the Board or which has not been prepared and published by it shall be prescribed as text-book in any school.”
Clause (2) of this section reads as under:
“The copy-right of all text books and other books published by the Board, shall vest in the Board.”
Thus with reference to the enactments as mentioned above it is clear that no book can be selected or approved as a text book for any school in the primary and secondary stages of Bangladesh without the approval of the Bangladesh School Text Book Board or which has not been prepared and published by the Board itself. The copyright of the text-book and other book’s published by the Board vests exclusively with the Board. These two enactments mainly deal with text book only and no. where anything has been said with regard to note book on the text book. On the reverse of the opening page of a text book it is clearly mentioned that the text-book is published by the National Curriculum and Text Book Board and all rights are reserved by the publisher.
43. I will now proceed to consider as to whether lawfully any prohibition can be imposed on the printing, publication, import, distribution, sale and circulation of any note-book prepared on the text-book. It is now undeniable that the Bangladesh School Text Book Board has the exclusive right to prescribe text books for the schools in Bangladesh. By “Text-Book” we mean original work of the author specially opposed to “note book” which are explanations, annotations, paraphrasing, commentaries, answers, solutions, etc. Text-book is prescribed for study in school but note book is not prescribed for study in school.
44. The object of the Note-Books (Prohibition) Act, 1980 is to prohibit printing, publication, import, distribution and sale of note books on text books for primary and secondary schools upto Class VIII.
45. I will now deal with the relevant provisions of the impugned Act. Section 2(b) of the Act defines “Note book” which includes the preparation of notes, annotations, explanations, comments, references, answers or solutions to any question of any text book but does not include any such book published by or under the authority of the Board. From the definition of the ‘note book’ in the Act it is clear that no note book of any text book can be printed and published without the authority of the Board. In other words, the Board can publish note book but the publishers on their own cannot print and publish note book on the text book of the Board.
46. Section 3(1) of the impugned Act reads “No person shall print, publish, import, sell, distribute or in any manner put into circulation or keep for printing, publication, sale, distribution or circulation of any note-book”. Section 4 of the Act speaks of penalty which can be imposed or contravention of any provision of section 3 of the Act and also for forfeiture of the note-book to the Government.
47. I have already stated earlier that in these two enactment relating to the control of the Board on the text book nothing has been said with regard to the note book. It is only in the impugned Act that publication of note book of text book of School Text Book Board is prohibited.
48. The main contention of the wd petitioners before the High Court Division was, that clause (2)(a) of Article 39 of the Constitution guarantees “the right of every citizen to freedom speech and expression”, subject to certain reasonable restrictions that may be imposed by law as specified in clause (2) of Article 39 of the Constitution. The writing, printing, publishing, distribution and circulation of the note book as defined in clause (b) of section 2 of the impugned Act are right guaranteed by sub-clause (a) of clause (2) of Article 39 of the Constitution and the impugned Act has taken away this right of the writ petitioners in flagrant violation of clause (2) of Article 39 of the Constitution and, therefore, liable to be declared as unconstitutional. This impugned Act, in fact, has curtailed the right of the publishers to ‘freedom of speech and expression’ as guaranteed under Article 39(a) of the Constitution. A reference to the Article itself shows that ‘freedom of speech and expression is not absolute for, clause (2) of Article 39 permits restrictions being imposed upon it in certain circumstances. The circumstances are:
(a) In the interest of security of the state;
(b) Friendly relations with Foreign States;
(c) Public order;
(c) Decency of morality;
(e) In relation to contempt of court;
(f) Defamation and incitement to an offence.
These restrictions are enumerated in the Constitution itself. The restrictive clauses as mentioned hereinabove are exhaustive and are to be strictly followed. In interpreting this Article, no ground beyond those mentioned in clause (2) can be imported to curtail the freedom of ‘the speech and expression’. Any ground outside the relevant provisions as mentioned in clause (2) of Article 39 of the Constitution will offend Article 39 of the Constitution. In the yardstick of these restrictive clauses, I am to see whether the right to “freedom of speech and expression’ has been lawfully curtailed under the restrictions as mentioned in clause (2) of Article 39 of the Constitution.
49. The learned Attorney-General argued before the High Court Division that the restriction imposed by the impugned Act regarding the publication and printing of note book is against ‘decency and morality’ as enumerated in clause (2) of Article 39 of the Constitution. The material observation in the judgment of the High Court Division reads as follows:
“The learned Attorney-General has, however, candidly conceded that the enactment has no relation to the other purposes mentioned in clause (2) of Article 39 of the Constitution”.
50. Mr. Abdul Wadud Bhuiyan, learned Additional Attorney-General, argued before us, that the School Text Book Board has got statutory domain over all text books and by necessary implication, it includes the power to protect the text books from being used in the production of note without the permission of the Board which is the ancillary power of the Board to protect the text books and the act of the publishers to print note-books constitute encroachment upon the statutory domain of the Board and are likely to infringe the copyright in the text books.
51. Mr. SR Pal, learned Advocate appearing for the respondents, submits that the question of infringement of the copyright of the text book is irrelevant in the case as the Board has got no copyright over any note book published by the printers on the text book of the Board. He further submits that Note Books (Prohibition) Act, 1980 is a subordinate legislation and it can only survive provided it is not inconsistent with any provision of Article 39(2) of the Constitution.
52. With reference to the National Curriculum and Text Book Board Ordinance, 1983, the learned Additional Attorney-General could only show that the School Text Book Board has got the exclusive right of publication of the text book, but not the note book of the text book and, as such, his argument that the Board has the ancillary power to protect its text book by not allowing to publish the note book is not tenable in this case. In a case, where we are considering the constitutional validity of an Act such indirect and oblique argument about the ancillary power is not at all available. The argument of the learned Additional Attorney General on the question of infringement of the copyright is wholly irrelevant in the present cases. The Beard has no copyright on the note book of the text book, The question of infringing the copy right of the Board does not arise at all in this case. For argument’s sake, if the Board had that authority then certainly the Board could have proceeded under the Copyright Act and could tale legal action against the publishers for violation of the copyright of the Board. But why to make the impugned Act? Hence there is no violation of the Copyright Act, far less any law. I must also say that before the High Court Division no such argument was made by any party on the question of infringement of copyright.
53. The Bengali version of Article 39(1)(a) reads as follows:
“প্রত্যেক নাগরিকের বাক ও ভাব প্রকাশের স্বাধীনতার অধিকার”
54. It is undeniable that this Bengali expression goes at the root of one’s ‘thought and feeling’ in promoting the cause of literature, art or human thought such as, painting, sculpture, music and any form of art. I am of the view that everyone is free to propagate and circulate his own ideas and thought, by word of mouth, writing or in any form he likes. What the note book writer is doing is not reproducing the contents of the author, but they are making notes, comments, annotations, explanations and opinions on the original works of the authors. The freedom of speech and expression cannot be limited only to the original ideas and views but it will also include the views and comments of others. A dichotomy is not permissible to make between original ‘speech and expression’ and propagation of ideas, comments and views on the original ‘speech and expression’ of others.
55. Review or commentary of a book written by an author or a poem by a poet is always made by others by expressing their own opinion and ideas on the subject. In writing the annotations and explanations one is free to propagate his views on the subject as freedom of speech and expression of human thought in any form is always available to a citizen. Unless, of course, the same offends any constitutional mandate or any existing law.
56. I have searched for cases in our jurisdiction on the question of interpretation of Article 39, but unfortunately, I did not get any case. Further, I must say very frankly that I could not lay my hand on very many authorities in the Indian jurisdiction on the scope and extent of guarantee of ‘freedom of speech and expression”.
57. I will consider hereinbelow some of the decisions to understand the Constitutional validity of the impugned Act. I will first refer to the case of Romesh Thappar vs. State of Madras, AIR 1950 (SC) 124, as noticed by the learned Judges of the High Court Division. That was a case where a ban was imposed on a printer, publisher and editor of a weekly journal upon the entry and circulation of the journal in Madras in exercise of the power of Madras Maintenance of Public Order Act, 1949. In that decision, it was held that ‘freedom of speech and expression’ includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Article 19 of the Indian Constitution is equivalent to Article 39 of our Constitution. The ban was imposed on the ground of ‘public order’ which undermines the security of the state under one of the restrictive Clauses of Article 19 of the Indian Constitution. It was held therein that unless a law restricting ‘freedom of speech and expression’ is directed solely against undermining of the security of the state as contained in the restrictive clause of Article 19, the freedom guaranteed under the Constitution cannot be curtailed. Section 9(1)(a) of Madras Maintenance of Public Order, 1949, though authorises imposition of restriction for the purpose of securing public safety or maintenance of public order but it falls outside the scope to authorise restriction under clause (2) of Article 19 of the Indian Constitution and therefore the Act was knocked down as unconstitutional and void.
58. The learned Additional Attorney-General next cited the case of West Bengal Board of Secondary Education vs. Standard Book Co. and others, 70 CWN 1130. The reported decision is a case on the question of infringement of copyright of the plaintiff. The defendants of that case published a book called “Notes on Parijat Readers; Book One”. Parijat Readers, Book One is a text book in English for Class VI. In that reported decision, the learned Single Judge of the Calcutta High Court on reading the text book and the notes in Parijat Readers found reproduction of stories in substantial part, thereby found infringement of the copyright of the plaintiff. The West Bengal Board of Secondary Education has the copyright over the text books and no explanatory book or any abridgement thereof or what is commonly known as note book can be prepared without the written permission of the Board and the publication of the same makes the publisher liable to damages. In the text book on the reverse of the opening page it is clearly noted that no note book can be prepared without the express written permission of the West Bengal Secondary Board of Education. (The underlining is by me). In that interlocutory application for injunction, the learned Single Judge held that the writing of the prima facie infringed the plaintiffs copyright. That was a case purely on infringement of copy right as the copyright of the text book/note book of the text book was the exclusive right of the plaintiff. I am afraid, this cited decision has no relevance in deciding the constitutional question raised in these appeals before us.
59. The next decision cited by him is, AIR 1951 Pepsu-59. The fact of that case is that a student of the MA final year class of the Mohindra College, Patiala printed and issued the hand-bill condemning the conditions of the college. The hand-bill in question was defamatory in nature and, as such, it was held that the student without printing and issuing the same, if he had a genuine grievance could approach the higher educational authorities and the Government rather than to print out a hand-bill which offends against the ordinary law of the land. In that decision, it was observed after considering Article 19 of the Indian Constitution which speaks of ‘freedom of speech and expression, that the qualifications enumerated in clauses 2 to 6 of Article 19 are also subject to the qualification that exercise of a right by a citizen should not infringe the rights of others. That case was not, in fact, deciding the question of fundamental right and the limitations imposed by the constitution itself on the exercise of the fundamental right. No question of constitutionality was raised in that decision.
60. I may say unhesitatingly that what has been said by the learned Single Judge in that above case is so true, that in a civilised, organised and welfare society no individual can have absolute or unfettered right of infringing the rights of others. The observation of the learned Judge is true for all society and for all ages.
61. The Additional Attorney-General cited the case of Hamdard Dawakhana and another vs. Union of India, AIR 1960 (SC) 54. The reported decision is a case on commercial advertisement which has an element of trade or commerce and, as such, it does not fall within the concept of freedom of speech and expression. In that reported decision provision of section 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1951 was challenged as violative of Article 19(1) (a), (b) and (g), 14, 21 and 31 of the Indian Constitution. In that decision while considering Article 19(1) of the Indian Constitution a learned Judge in paragraph 18 observed as follows:
“It cannot be said therefore that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and what activity falling under Article 19(1) it seeks to further. The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Article 19 (1)(a). The main purpose and true intent and aim, object and scope of the Act is to prevent self-medication or self-treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited. Can it be said that this is an abridgement of the petitioners’ right of free speech. In our opinion, it is not.”
Hence, the commercial advertisement is kept Out of the concept of freedom of ‘speech and expression’ as by commercial advertisement only the importance and efficacy of certain goods are tried to be made popular for the consumers, so that they are attracted to buy the same. In the case of Express Newspaper Limited vs. Union of India, AIR 1958 (SC) 378, it has been noticed that freedom of speech and expression is one of the most valuable rights guaranteed to a citizen by the Constitution and it should be jealously guarded by the Court. Unless a law enacted by the legislature comes squarely within the provisions of Article 19(2) it would not be saved and would be struck down as unconstitutional on the score of its violating the fundamental right.
62. 1 must quote a passage from a case of Sakal Papers Ltd, and others vs. Union of India reported in 1962 (SC) 305, wherein it has been observed as follows-
“The right to propagate one’s ideas is inherent in the conception of freedom of speech and expression. For the purpose of propagating his ideas every citizen has a right to publish them, to disseminate them and to circulate them. He is entitled to do so either by word of mouth or by writing. The right guaranteed thus extends, subject to any law competent under Article 19(2), not merely to the matter which he is entitled to circulate, but also to the volume of circulation. In other words, the citizen is entitled to propagate his views and reach any class and number of readers as he chooses subject of course to the limitations permissible under a law competent under Article 19(2).”
On a careful perusal of the judgment of the High Court Division it appears that the learned Judges were absolutely correct in holding that “this freedom of speech and expression” is wide enough to include expression of one’s original ideas and also expression of one’s opinion in the form of comments, explanations, annotations, solutions and answers to question on the ideas expressed by others. The learned Judges of the High Court Division correctly opined that the concept of freedom of speech and expression does not only embrace propagation of the original ideas and thought, but also the expression and publication of one’s idea and thought, by way of explanations, commentaries, notes, annotations, etc. of the original ideas and thought.
63. I must say very frankly that in this case there has been no argument on Article 40, pertaining to ‘freedom of profession or occupation’ before the High Court Division or before us. The main thrust being not on Article 40, I refrain from entering into that question at all.
64. In examining the constitutionality of the impugned Act it must be said that the Act has an initial presumption in favour of the constitutionality of the same. The impugned Act being a subordinate legislation it is to be kept in mind that the Act is subject to the supreme law of the land, namely, the Constitution which controls all subordinate legislations and in case of violation of the fundamental right as provided in Part III of the Constitution, the law shall be declared as void. I also find that the main operative sections cannot be severed from the rest of the provisions of the Act as correctly found by the learned Judges. In the impugned Act sections 3 and 4 are operative parts of the Act. Sub-section (1) of section 3 is the prohibition of publication of note-book and sub section (2) of the section is an exception to sub-section (1). The main part of sub-section (1) of section 3 cannot be saved. Sub-section (4) is the penal provision and forfeiture for violation of section 3. Since section 3 could not be saved the entire Act must be declared unconstitutional.
65. In considering the constitutional validity of the impugned Act I find that it directly and inevitably touches at the freedom guaranteed to a citizen under Article 39 of the Constitution. The effect of the impugned Act on fundamental right is direct. Consequently, I hold that the impugned Act is unconstitutional as violative of Article 39(2) of the Constitution.
In the result, Civil Appeal Nos. 16 and 17 of 1996 are dismissed and the judgment and order of the High Court Division is affirmed.
Md. Abdur Rouf J.
I have gone through the judgments written by my Lord the Chief Justice and my learned brother Latifur Rahman, J. I concur with the judgment of my Lord the Chief Justice.
Order of the Court
The appeals filed by the Bangladesh National Curriculum and Text-Book Board, Civil Appeal Nos. 76 and 77 of 1993, having not been pressed are hereby dismissed. By majority decision the Government appeals, Civil Appeal Nos.16 and 17 of 1996, are allowed upon condoning the delay in filing the said appeals. There will be no order as to cost.