published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40528
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NOs. 5166-5190 OF 2013
3 (Arising out of SLP (C) Nos. 18139-18163 of 2008
The State of Karnataka & Anr. .... Appellant (s)
Versus
The Associated Management of
(Govt. Recognized unaided
English medium) Primary
and Secondary Schools & Ors. .... Respondent(s)
WITH
WRIT PETITION (C) No. 290 of 2009
And
CIVIL APPEAL NOs. 5191-5199 OF 2013
(Arising out of SLP(C)Nos.15640-15648 of 2009)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted in all the special leave petitions.
SLP (C) Nos. 18139-18163 of 2008
2) These appeals have been filed against the final judgment and order
dated 02.07.2008 passed by the High Court of Karnataka at Bangalore in Writ
Petition No. 14363 of 1994 connected with Writ Petition Nos. 14377, 15491,
19453, 22563, 25647, 18571, 19331, 17337, 18787, 19469, 20165, 17338,
22752, 19434, 17677, 19346 of 1994, Writ Appeal No. 2415 of 1995, Writ
Petition Nos. 11785, 29540 of 1995, Writ Petition Nos. 34396, 34684, 34185
of 1996, Writ Petition No. 30645 of 1999 and Writ Petition No. 900 of 2000
whereby the High Court partly allowed the writ petitions filed by the
respondents herein.
3) Brief facts:
(a) The Associated Management of Govt. Recognized Primary and Secondary
Schools Association is a society registered under the Karnataka Societies
Registration Act , 1960 (in short ‘the Society’)-Respondent herein,
consisting of recognized, unaided, English medium, primary and secondary
schools in the State of Karnataka. On 19.06.1989, the Government of
Karnataka, in pursuance of Constitutional mandate under Article 350A of the
Constitution of India, spelt out its language policy by way of a Government
Order specifying the mother tongue as the medium of instruction at the
primary school level and making it mandatory for every child who has not
opted for ‘Kannada’ as the first language to take it as a second language.
The aforesaid order was challenged before this Court in English Medium
Students Parents Association vs. The State of Karnataka & Ors. 1994 (1) SCC
550, wherein, by order dated 08.12.1993, this Court, while upholding the
Government Order dated 19.06.1989, declined to interfere in the matter.
(b) In the light of the aforesaid order dated 08.12.1993, the Government
of Karnataka issued a revised Government Order dated 22.04.1994 purporting
to re-affirm its policy set out in its earlier order dated 19.06.1989. The
Government of Karnataka, having regard to the difficulties and hardships
involved in converting English medium schools to Kannada medium schools,
resorted to make the policy applicable to the English medium schools from
the year 1989. In supersession of all the earlier orders, the Government
of Karnataka issued subsequent Government Order dated 29.04.1994 indicating
the language policy to be followed in the State with effect from the
Academic Year 1994-1995. As per the said order, the medium of instruction
from 1st to 4th standard in all schools recognized by the State Government
shall be either the mother tongue or Kannada from the Academic Year 1994-
1995, however, permission was granted to the students studying in 2nd, 3rd
and 4th standards to continue in the medium of language they were studying
at that time. It was also ordered to close down all the unauthorized
schools that were not fulfilling the prescribed conditions.
(c) In pursuance of the impugned Government Order, consequential orders
were issued to several schools calling upon them to change the medium of
instruction and to effect other consequential changes. Being aggrieved of
the impugned orders, various linguistic and religious minorities, religious
denominations, parents, parents’ associations, children through their
parents and educational institutions run by the majority filed Writ
Petition being No. 14363 of 1994 and connected writ petitions before the
High Court of Karnataka questioning the constitutional validity of the
Government Orders dated 22.04.1994 and 29.04.1994 as being violative of
Articles 14, 19(1)(a), 21, 29(2) and 30(1) of the Constitution of India.
(d) The full Bench of the High Court, by order dated 02.07.2008, partly
allowed the writ petition and the connected petitions while upholding the
Government Order and quashed clause Nos 2, 3, 6 and 8 of the impugned
Government Order dated 29.04.1994 in its application to schools other than
the schools run or aided by the Government.
(e) Being aggrieved, the State of Karnataka has preferred these appeals
by way of special leave before this Court.
Writ Petition (C) No. 290 of 2009
4) Apart from the above appeals, 15 residents of the State of Karnataka,
claiming as eminent educationists, deeply interested in the subject,
namely, that primary education from 1st to 4th standard in all Government
recognized schools should be in the mother tongue of the children concerned
filed Writ Petition No. 290 of 2009 under Article 32 of the Constitution of
India praying to declare that the Government Order dated 29.04.1994 is
constitutionally valid in respect of unaided government recognized primary
schools also and to issue a writ of mandamus directing the State Government
to implement its order dated 29.04.2004 accordingly.
SLP (C) Nos. 15640-15648 of 2009
The above said petitions have been filed by various officers of the
Education Department of the State of Karnataka-the appellants herein
against the order dated 03.07.2009, passed by learned Single Judge of the
Karnataka High Court, directing them to accord permission to Shubodaya
Vidya Samsthe and Saraswathi Education Society-the respondents herein to
start an English Medium School in the State during the pendency of the
appeal before this Court.
5) Since the relief sought for in the appeals and the writ petition
pertains to the same subject-matter, they are being dealt with by the
present order.
6) Heard Mr. P.P. Rao, Mr. H. Subramanya Jois, learned senior counsel
for the appellants and Mr. Mohan V. Katarki, learned counsel for the
respondents and Mr. T.S. Doabia, learned senior counsel for the Union of
India.
7) The Government of Karnataka, by order dated 20.07.1982, prescribed
that Kannada shall be the sole first language from 1st standard of primary
school itself. The constitutional validity of this order was challenged in
a number of writ petitions before the High Court of Karnataka by linguistic
minorities contending that they have a right to have primary education in
their respective mother tongue and, therefore, prescription of Kannada as
the sole language in which education should be imparted from 1st standard
itself is unconstitutional and violative of Articles 14, 19, 21, 29 and 30
of the Constitution.
8) Considering the importance of the matter, the same was heard by a
Full Bench of the Karnataka High Court in General Secretary, Linguistic
Minorities Protection Committee vs. State of Karnataka AIR 1989 Kant 226.
After considering the claim of all the parties concerned and also the
opinion of various committees, the Full Bench, by order dated 25.01.1989,
held that the Government Order dated 20.07.1982 is unconstitutional to the
extent that it made Kannada a compulsory and sole subject for all children
in the State of Karnataka from 1st standard and deprived the petitioners
therein whose mother tongue was not Kannada to have primary education in
their mother tongue. Along with the said petitioner(s), a writ petition
was also filed by English Medium Students Parents Association claiming that
they have the right to have primary education in English language as
substantial number of members of the said organization were converted
Christians and, therefore, they have the right to have primary education in
English. The said request was negatived by the full Bench, however,
liberty was given to the State to formulate its language policy. Aggrieved
of the said order of the full Bench of the Karnataka High Court, the State
Government preferred an appeal before this Court. However, after having
preferred an appeal, the State Government accepted the principle that
primary education from 1st to 4th standard should be in mother tongue and
issued a Government Order (GO) dated 19.06.1989 in conformity with the
judgment of the Full Bench of the Karnataka High Court, inter alia,
prescribing that mother tongue shall be the medium of instruction from 1st
to 4th standard while the appeal was pending before this Court.
9) The English Medium Students Parents Association filed a writ petition
under Article 32 before this Court questioning the constitutional validity
of the GO dated 19.06.1989 on the ground that prescription of mother tongue
as the sole language of instruction from 1st to 4th standard was
unconstitutional and violative of Articles 29 and 30 of the Constitution as
it interfered with the right to have primary education at that level in
English.
10) The appeals filed by the Government of Karnataka and the writ
petition filed by the English Medium Students Parents Association were
heard together and decided by a common judgment of this Court in English
Medium Students Parents Association (supra). By order dated 08.12.1993,
this Court upheld the decision of the Full Bench of the Karnataka High
Court. Thereafter, the State Government made an order dated 22.04.1994 in
conformity with the judgment of this Court prescribing that mother tongue
of the children or the regional language shall be the language in which
education shall be imparted from 1st to 4th standard. In the said order,
the State Government exempted the educational institutions to which
permission had been granted earlier to 1989 from giving instruction in
primary education from 1st to 4th standard in mother tongue. This created
incongruity for the reason that in view of the said exemption, there would
be two categories of primary schools in that one set started prior to 1989
with English medium would continue primary education in English whereas
primary schools started after 1989 were bound to impart primary education
in mother tongue. When this contradiction was brought to the notice of the
Government, the Government immediately modified the order dated 22.04.1994
by another order dated 29.04.1994 removing the exemption.
11) The Associated Management of Primary and Secondary Schools,
Karanataka filed Writ Petition No. 14363 of 1994 before the High Court
challenging the constitutional validity of the aforesaid two GOs dated
22.04.1994 and 29.04.1994. The State Government filed its statement of
objection to the writ petition stating that by judgment dated 08.12.1993,
the policy of the State Government prescribing mother tongue as the
language in which the primary education from 1st to 4th standard should be
imparted was constitutionally held valid by this Court and the impugned
orders were similar in that both prescribed that primary education from 1st
to 4th shall be the mother tongue of the children. The Full Bench before
which the said writ petition was posted ultimately concluded on 02.07.2008
holding that the Government orders dated 22.04.1994 and 29.04.1994 were
applicable only to Government and government aided private schools but not
to private and unaided primary schools, though they were also government
recognized schools.
Contentions of the Appellants:
12) Mr. P.P. Rao, learned senior counsel for the State of Karnataka, by
taking us through various articles of the Constitution and the provisions
of the Karnataka Education Act, 1983 and the Right of Children to Free and
Compulsory Education Act, 2009 (in short ‘the RTE Act’) as well as various
decisions of this Court submitted that the High Court committed an error in
not following the decision of this Court in English Medium Students Parents
Association (supra) in which this Court upheld the Government Order
prescribing that primary education shall be in mother tongue. He also
pointed out that the High Court has equally committed an error in holding
that this Court did not go into the question as to whether a parent or a
student has a right to choose the medium of instruction at the primary
school stage when that was the very question raised by the petitioners
therein and rejected by this Court. He further pointed out that the High
Court erred in holding that the parent and the child (“pupil”) have a
fundamental right of the choice of medium of instruction at primary level
as against the policy decision taken by the State in larger national and
educational interest of the children. According to him, the High Court
failed to take note of Article 350A of the Constitution which stipulates
that every endeavor shall be made by the State and Local Authority to
provide adequate facilities for instructions in mother tongue at the
primary stage of education and empower the State to lay down its education
policy that primary education shall be in the mother tongue of the children
concerned. He further contended that the High Court equally committed an
error in holding that primary education shall be in mother tongue only in
respect of government and government aided schools notwithstanding the fact
that all schools belonged to one category as recognized schools and alone
can impart education. Finally, he submitted that the policy of the
Government to have uniform policy in the matter of primary education is not
only applicable to Government and Government Aided institutions but also to
unaided institutions which was approved by this Court in English Medium
Students Parents Association (supra).
13) The individuals claiming as educationalists fighting for Kannada
language who filed writ petition under Article 32 of the Constitution also
adopted the similar arguments.
Contentions of the Respondents:
14) On the other hand, various learned counsel appearing for unaided
Management Schools, Linguistic Minority Institutions, Parents and Students
submitted that the earlier decision of this Court, namely, English Medium
Students Parents Association (supra) did not go into the medium of
instruction and the issue therein was mother tongue/Kannada as one of the
language and parents/children have every right to choose the medium
according to their choice. In their view, the High Court is fully
justified in quashing those offending clauses and there is no merit in any
of the contentions raised by the State and other persons who are all
supporting the stand of the State.
Discussion:
15) We have carefully considered the rival contentions, perused the
constitutional provisions, various clauses in the impugned orders and
decisions relied on by both sides.
16) The entire argument of both the sides is whether in English Medium
Students Parents Association (supra) the issue pertaining to medium of
instruction was contested and a decision was arrived at in that regard? In
light of the above, it is essential to comprehend the ratio laid down in
the said decision to arrive at a decision in this matter.
17) At the cost of repetition, it is useful to reiterate the factual
background of the English Medium Students Parents Association (supra) for
better comprehension. Government of Karnataka, wedded to the cause of
promotion of Kannada language, appointed a Committee of six persons with
Dr. V.K. Gokak as the Chairman and referred the following questions :
(i) Should Sanskrit remain as the subject for study in the school
syllabus?
(ii) If so, how to retain it without its being an alternative for
Kannada?
(iii) Would it be proper to have Kannada as a compulsory subject as
per the three language formula and should the option of selecting the
remaining two languages be left to students themselves?
18) The Committee submitted its report dated 27th January, 1981 which is
popularly known as Dr. Gokak Committee Report. The gist of the
recommendations is as under :
(i) Kannada should be introduced as a compulsory subject for all
children from 3rd Standard;
(ii) Kannada should be the sole first language for the Higher
Secondary Schools (i.e., 8th, 9th and 10th Standards) carrying 150
marks, and this should be implemented for Kannada speaking people from
1981-82 itself and in respect of others from 1986-87, after taking
necessary steps to teach Kannada to them from the 3rd standard from
the academic year 1981-82 itself.
19) On a consideration of the abovesaid report, the State Government
passed an order dated 30.04.1982 drafting a language policy, which stated
that Kannada or mother tongue, shall be the first language. Since it was
felt that the order dated 30.04.1982 did not sufficiently reflect the
aspirations of the Kannada speaking people, the Government thought it
expedient to place the entire matter before the State Legislature. The
State Legislature resolved that in the High Schools, Kannada must be the
sole first regional language carrying 125 marks. In addition, a student
might study any two languages carrying 100 marks each. In accordance with
the above Resolution, the State Government made an order dated 20.07.1982
wherein the government directed that Kannada shall be the sole first
language. Aggrieved by the abovesaid order, some of the educational
institutions preferred writ petitions in the High Court of Karnataka. It
was contended that the order was violative of the rights of minorities
under Articles 29 and 30 of the Constitution of India. Initially, when the
writ petitions came up for hearing before a Single Judge, the matters were
referred to a Division Bench. The Division Bench, by order dated 27.01.1984
referred the abovesaid question to the Full Bench. The full Bench in
General Secretary, Linguistic Minorities Protection Committee (supra)
expressed its opinion as follows:-
“8. ….The Govt. Order dated 20th July, 1982 in so far it relates to
the making of study of Kannada as a compulsory subject to children
belonging to linguistic minority groups from the first year of the
Primary School and compelling the Primary Schools established by
Linguistic Minorities to introduce it as a compulsory subject from the
first year of the Primary School and also in so far it compels the
students joining High Schools to take Kannada as the sole first
language and compelling the high schools established by linguistic
minorities to introduce Kannada as the sole first language in the
Secondary Schools, is violative of Articles 29(1), 30(1) and 14 of the
Constitution.”
After rendering such opinion, the matter was sent back to the Division
Bench for disposal in accordance with the same and, accordingly, the cases
were dismissed by judgment dated 25.01.1989. Against this judgment, the
State of Karnataka came up in appeal in Civil Appeal Nos. 2856-57 of 1989.
20) After the decision of the full Bench, pending the civil appeal before
this Court, the Government of Karnataka issued a GO dated 19.06.1989,
prescribing the mother tongue shall be the medium of instruction from Ist
to 4th standard. The relevant paragraph of the said order is as under:-
“9. …..Govt., are pleased to order that the following language policy
shall be implemented in the primary and Secondary Schools pending
final decision of the Supreme Court.”
“From 1st Standard to IVth Standard, mother tongue will be the medium
of instruction, where it is expected that normally only one language
from Appendix-1 will be the compulsory subject of study….”
The validity of the abovesaid GO was questioned in the Writ Petition No.
536 of 1991 before this Court on the ground that it is violative of
Articles 29, 30 and 14 of the Constitution of India.
21) In the meantime, a corrigendum came to be issued on 22.06.1989, which
reads as under:
“16…For para (i) of Order portion of the above said Govt. order dated
19.6.1989 i.e., from the words "From 1st standard...subject to study"
the following para shall be substituted: -
“From 1st standard to IVth standard, where it is expected that
normally mother tongue will be the medium of instruction, only one
language from Appendix-I will be compulsory subject of study.”
22) With this background, by order dated 08.12.1993, this Court while
upholding the GO dated 19.06.1989 dismissed the writ petition being No. 536
of 1991 as devoid of merits. 23) As regards the Civil Appeal Nos. 2856-57
of 1989 filed against the full Bench decision of the High Court of
Karnataka, it was held that the majority opinion of the High Court has
approached the matter in a proper perspective and concluded as under:-
“25.…..We have no difficulty in upholding the well-considered judgment
of the High court. In fact, the State has accepted the position and
issued G.O. dated 19.6.89 which is impugned in W.P. No. 536 of 1991.
Therefore, the civil appeals will also dismissed. However, in the
circumstances of the case, there shall be no order as to costs.”
24) In the light of the aforesaid order dated 08.12.1993, the Government
of Karnataka issued revised Government Orders dated 22.04.1994/29.04.1994
purporting to re-affirm its policy set out in its earlier order dated
19.06.1989. Now, let us test the contentions of the appellants and the
respondents in light of the above verdict.
25) Learned senior counsel for the appellants contended that GO dated
29.04.1994 is based on the judgment of the full Bench of the Karnataka High
Court as affirmed in English Medium Students Parents Association (supra) by
this Court, therefore, there is no infirmity in the same which came to be
passed in the light of GO dated 19.06.1989.
26) While it is argued from the side of the respondents that judgment in
English Medium Students Parents Association (supra) is with reference to
the GO dated 19.06.1989 whereas the subject matter of the present writ
petition is the GO dated 29.04.1994. Further, it was submitted that in
English Medium Students Parents Association (supra) it was held that the
order dated 19.06.1989 is not open to challenge because there was no
element of compulsion in studying Kannada at the primary stage and that
from standard 1st to 4th where mother tongue will be the medium of
instruction, only one language from Schedule I thereof will be compulsory
and further from standard 3rd onwards Kannada will be an optional subject
for non-Kannada speaking students whereas the GO impugned in this writ
petition departs and deviates from the GO dated 19.06.1989, the validity of
which was upheld by this Court. Kannada is covertly made compulsory by the
present impugned order under clause 2, 3, 6 & 8. Hence, the judgment of
this Court does not and cannot come in the way of considering the present
writ petition on merits. Therefore, the contention of the respondents is
that the fundamental rights of citizens cannot be infringed by the State
taking shelter under the policy.
27) The full Bench of the High Court, by order dated 02.07.2008, decided
the issue in the following words in the impugned judgment:-
“79. It cannot be disputed these clauses were conspicuously missing
in the Government order dated 19.06.1989. They are introduced for the
first time in Government Order dated 29.04.1994. the validity of these
clauses were not the subject matter of earlier proceeding either
before this Court or Apex Court. The Constitutional validity of these
clauses was not challenged earlier, no arguments were addressed for or
against the said clauses, neither this court nor the Apex Court
considered the validity of these clauses nor any decision was
rendered. It is for the first time, the aforesaid clauses are
challenged before this Court. Therefore, the aforesaid decisions do
not conclude the matter in issue in this writ petition.
90. As is clear from the facts set out above in the aforesaid Full
Bench Judgment, the question for consideration was, whether the
Government Order making study of kannada compulsory from the First
Year of primary School in addition to mother tongue of the land was
violative of Article 14, 29 and 30 of the Constitution and the
Government Order prescribing Kannada as sole First language at High
School level was also violative of Article 14, 19 and 30 of the
Constitution. In the Government Order dated 19.06.1989, which was also
the subject matter of the Writ petition under 32 of the Constitution
of India before the Supreme Court, the question was again only one
language from Appendix-I could be the compulsory subject of study. The
full Bench struck down the earlier Government Order as there was
compulsion to study Kannada and therefore violative of Article 19, 21
and 30 which finding was upheld by the Supreme Court. For the same
reason the Supreme Court declined to interfere with the subsequent
Government Order dated 19.06.1989 as there was no compulsion to study
any particular language from I to IV Standard, as is clear from Clause
I of the Government Order. Therefore, the ratio decedendi, of the
Judgment of the Apex Court as well as the full bench is “If there is
an element of compulsion in the Government policy, which infringes the
fundamental rights guaranteed to the citizens of this country under
the Indian Constitution, such policy is void and the fundamental
rights have to prevail over such governmental policy. In the absence
of such compulsion the courts should not interfere with the policy
decision of the Government. The question whether a student, a parent
or a citizen has a right to choose a medium of instruction at primary
stage other than mother tongue or regional language was not the
subject matter of the aforesaid proceedings and the said question was
not considered either by this court or by the Apex Court and no
decision rendered in the aforesaid proceedings on the said point. The
casual expressions, observations, conclusions and the suggestions made
in the earlier full bench judgment cannot be construed as a ratio
decidendi, especially in constitutional matters, as the said question
did not arise for consideration in the said case. Therefore the
contention that the question involved in this Writ Petition are
squarely covered by the earlier decisions of this Court and Apex Court
is without any substance and accordingly it is rejected.”
28) In the line of above observation, the High Court accepted the
contentions of the respondents that this Court in English Medium Students
Parents Association (supra) did not consider the issue raised in the
present writ petition and went on to deliver the impugned judgment.
29) After due consideration of the contentions of the appellants and the
respondents and reasoning of the High Court in the impugned judgment dated
02.07.2008, we are of the view that issue contemplated in the writ petition
before the High Court is not untouched by the decision in English Medium
Students Parents Association (supra). As already mentioned, Writ Petition
No. 536 of 1991 was filed in order to challenge the validity of the GO
dated 19.06.1989 which proposed to introduce mother tongue as the medium of
instruction and the same has been dismissed as devoid of merits. Hence, in
view of the above, this Court upheld the mother tongue as the medium of
instruction in the primary education.
30) However, it is equally correct that the impugned GOs dated
22.04.1994/29.04.1994 were not similar to GO dated 19.06.1989. Since the
said impugned order reframed the earlier order by adding few additional
clauses, which were the matter of dispute in the writ petition before the
High Court and this Court, a reference to the contested clauses in the
impugned order shall be timely:-
“Proceedings of Government of Karnataka
Sub: Regarding implementation of languages Policy in the primary and
high schools.
Government Order No. ED 28 PGC 94
Bangalore dated 29.04.1994
1. xxx
2. The medium of instruction should be mother tongue or Kannada,
with effect from the academic year 1994-95 in all Government
recognized schools in classes 1 to 4.
3. The students admitted to 1st standard with effect from the
academic year 94-95, should be taught in mother tongue or Kannada
medium.
6. Permission can be granted to only students whose mother tongue
is English, to study in English medium in classes 1 to 4 in existing
recognized English medium schools.
8. It is directed that all unrecognized schools which do not comply
with the above conditions, will be closed down.”
Therefore, the contention of the State is partly correct when it says that
the impugned GOs viz., 22.04.1994/29.04.1994 are in substance similar to
GO dated 19.06.1989 since both the GOs stipulated the need for the child to
acquire the primary education in the mother tongue. However, the additional
clauses inserted in the impugned order, viz., Clause Nos. 2, 3, 6 and 8
compels the child to study in mother tongue or regional language which was
seriously contested before the High Court and this Court.
31) While deciding the validity of these additional clauses in the
impugned GO, the High Court further went on to state that the question
whether a student, a parent or a citizen has a right to choose a medium of
instruction at primary stage other than mother tongue or regional language
was not decided in the English Medium Students Parents Association (supra)
case and took the liberty to decide the same.
32) Observing the fact that a two-Judge Bench of this Court has already
arrived at a decision as to the question whether the medium of instruction
should be that of mother tongue in English Medium Students Parents
Association (supra), we are of the view that it is not appropriate to
decide the very same issue under different grounds by a Bench of same
number of judges. If we decide to accept the argument of the respondent
that a student or a parent or a citizen has a right to choose a medium of
instruction at primary stage, we in substance will be contradicting the
judgment in English Medium Students Parents Association (supra), which
upholds the mother tongue as the medium of language.
33) Having given our most anxious consideration, we are of the opinion
that it is a fit case for consideration by a larger bench.
34) The crux of all the grounds raised in the petition is that
whether
the mother tongue or the regional language can be imposed by the State as
the medium of instruction at the primary education stage.
35) The vital question involved in this petition has a far-reaching
significance on the development of the children in our country who are the
future adults.
The primary school years of a child is an important phase in
a child’s education.
Besides, it moulds the thinking process and tutors on
the communication skills.
Thus, primary education lays the groundwork for
future learning and success.
Succinctly, the skills and values that primary
education instills are no less than foundational and serve as bases for all
future learning.
Likewise, the importance of a language cannot be
understated;
we must recollect that reorganization of States was primarily
based on language.
Further, the issue involved in this case concerns about
the fundamental rights of not only the present generation but also the
generations yet to be born.
36) Considering the constitutional importance of these questions, we are
of the firm view that all these matters should be heard by a Constitution
Bench. With regard to the above, the following questions are relevant for
consideration by the Constitution Bench which are as under:-
(i) What does Mother tongue mean? If it referred to as the language in
which the child is comfortable with, then who will decide the same?
(ii) Whether a student or a parent or a citizen has a right to choose a
medium of instruction at primary stage?
(iii) Does the imposition of mother tongue in any way affects the
fundamental rights under Article 14, 19, 29 and 30 of the
Constitution?
(iv) Whether the Government recognized schools are inclusive of both
government-aided schools and private & unaided schools?
(v) Whether the State can by virtue of Article 350-A of the Constitution
compel the linguistic minorities to choose their mother tongue only as
medium of instruction in primary schools?
Apart from the above said issues, the Constitution Bench would also take
into consideration any other ancillary or incidental questions which may
arise during the course of hearing of the case.
37) With regard to the above, all the connected matters including
petitions/applications shall be placed before the Constitution Bench.
Since the matter in issue started in the year 1994, early disposal of the
case is desirable. Hence, the Registry is directed to place the same
before Hon’ble the Chief Justice of India for necessary directions.
..…………….………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
JULY 05, 2013.
-----------------------
25
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NOs. 5166-5190 OF 2013
3 (Arising out of SLP (C) Nos. 18139-18163 of 2008
The State of Karnataka & Anr. .... Appellant (s)
Versus
The Associated Management of
(Govt. Recognized unaided
English medium) Primary
and Secondary Schools & Ors. .... Respondent(s)
WITH
WRIT PETITION (C) No. 290 of 2009
And
CIVIL APPEAL NOs. 5191-5199 OF 2013
(Arising out of SLP(C)Nos.15640-15648 of 2009)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted in all the special leave petitions.
SLP (C) Nos. 18139-18163 of 2008
2) These appeals have been filed against the final judgment and order
dated 02.07.2008 passed by the High Court of Karnataka at Bangalore in Writ
Petition No. 14363 of 1994 connected with Writ Petition Nos. 14377, 15491,
19453, 22563, 25647, 18571, 19331, 17337, 18787, 19469, 20165, 17338,
22752, 19434, 17677, 19346 of 1994, Writ Appeal No. 2415 of 1995, Writ
Petition Nos. 11785, 29540 of 1995, Writ Petition Nos. 34396, 34684, 34185
of 1996, Writ Petition No. 30645 of 1999 and Writ Petition No. 900 of 2000
whereby the High Court partly allowed the writ petitions filed by the
respondents herein.
3) Brief facts:
(a) The Associated Management of Govt. Recognized Primary and Secondary
Schools Association is a society registered under the Karnataka Societies
Registration Act , 1960 (in short ‘the Society’)-Respondent herein,
consisting of recognized, unaided, English medium, primary and secondary
schools in the State of Karnataka. On 19.06.1989, the Government of
Karnataka, in pursuance of Constitutional mandate under Article 350A of the
Constitution of India, spelt out its language policy by way of a Government
Order specifying the mother tongue as the medium of instruction at the
primary school level and making it mandatory for every child who has not
opted for ‘Kannada’ as the first language to take it as a second language.
The aforesaid order was challenged before this Court in English Medium
Students Parents Association vs. The State of Karnataka & Ors. 1994 (1) SCC
550, wherein, by order dated 08.12.1993, this Court, while upholding the
Government Order dated 19.06.1989, declined to interfere in the matter.
(b) In the light of the aforesaid order dated 08.12.1993, the Government
of Karnataka issued a revised Government Order dated 22.04.1994 purporting
to re-affirm its policy set out in its earlier order dated 19.06.1989. The
Government of Karnataka, having regard to the difficulties and hardships
involved in converting English medium schools to Kannada medium schools,
resorted to make the policy applicable to the English medium schools from
the year 1989. In supersession of all the earlier orders, the Government
of Karnataka issued subsequent Government Order dated 29.04.1994 indicating
the language policy to be followed in the State with effect from the
Academic Year 1994-1995. As per the said order, the medium of instruction
from 1st to 4th standard in all schools recognized by the State Government
shall be either the mother tongue or Kannada from the Academic Year 1994-
1995, however, permission was granted to the students studying in 2nd, 3rd
and 4th standards to continue in the medium of language they were studying
at that time. It was also ordered to close down all the unauthorized
schools that were not fulfilling the prescribed conditions.
(c) In pursuance of the impugned Government Order, consequential orders
were issued to several schools calling upon them to change the medium of
instruction and to effect other consequential changes. Being aggrieved of
the impugned orders, various linguistic and religious minorities, religious
denominations, parents, parents’ associations, children through their
parents and educational institutions run by the majority filed Writ
Petition being No. 14363 of 1994 and connected writ petitions before the
High Court of Karnataka questioning the constitutional validity of the
Government Orders dated 22.04.1994 and 29.04.1994 as being violative of
Articles 14, 19(1)(a), 21, 29(2) and 30(1) of the Constitution of India.
(d) The full Bench of the High Court, by order dated 02.07.2008, partly
allowed the writ petition and the connected petitions while upholding the
Government Order and quashed clause Nos 2, 3, 6 and 8 of the impugned
Government Order dated 29.04.1994 in its application to schools other than
the schools run or aided by the Government.
(e) Being aggrieved, the State of Karnataka has preferred these appeals
by way of special leave before this Court.
Writ Petition (C) No. 290 of 2009
4) Apart from the above appeals, 15 residents of the State of Karnataka,
claiming as eminent educationists, deeply interested in the subject,
namely, that primary education from 1st to 4th standard in all Government
recognized schools should be in the mother tongue of the children concerned
filed Writ Petition No. 290 of 2009 under Article 32 of the Constitution of
India praying to declare that the Government Order dated 29.04.1994 is
constitutionally valid in respect of unaided government recognized primary
schools also and to issue a writ of mandamus directing the State Government
to implement its order dated 29.04.2004 accordingly.
SLP (C) Nos. 15640-15648 of 2009
The above said petitions have been filed by various officers of the
Education Department of the State of Karnataka-the appellants herein
against the order dated 03.07.2009, passed by learned Single Judge of the
Karnataka High Court, directing them to accord permission to Shubodaya
Vidya Samsthe and Saraswathi Education Society-the respondents herein to
start an English Medium School in the State during the pendency of the
appeal before this Court.
5) Since the relief sought for in the appeals and the writ petition
pertains to the same subject-matter, they are being dealt with by the
present order.
6) Heard Mr. P.P. Rao, Mr. H. Subramanya Jois, learned senior counsel
for the appellants and Mr. Mohan V. Katarki, learned counsel for the
respondents and Mr. T.S. Doabia, learned senior counsel for the Union of
India.
7) The Government of Karnataka, by order dated 20.07.1982, prescribed
that Kannada shall be the sole first language from 1st standard of primary
school itself. The constitutional validity of this order was challenged in
a number of writ petitions before the High Court of Karnataka by linguistic
minorities contending that they have a right to have primary education in
their respective mother tongue and, therefore, prescription of Kannada as
the sole language in which education should be imparted from 1st standard
itself is unconstitutional and violative of Articles 14, 19, 21, 29 and 30
of the Constitution.
8) Considering the importance of the matter, the same was heard by a
Full Bench of the Karnataka High Court in General Secretary, Linguistic
Minorities Protection Committee vs. State of Karnataka AIR 1989 Kant 226.
After considering the claim of all the parties concerned and also the
opinion of various committees, the Full Bench, by order dated 25.01.1989,
held that the Government Order dated 20.07.1982 is unconstitutional to the
extent that it made Kannada a compulsory and sole subject for all children
in the State of Karnataka from 1st standard and deprived the petitioners
therein whose mother tongue was not Kannada to have primary education in
their mother tongue. Along with the said petitioner(s), a writ petition
was also filed by English Medium Students Parents Association claiming that
they have the right to have primary education in English language as
substantial number of members of the said organization were converted
Christians and, therefore, they have the right to have primary education in
English. The said request was negatived by the full Bench, however,
liberty was given to the State to formulate its language policy. Aggrieved
of the said order of the full Bench of the Karnataka High Court, the State
Government preferred an appeal before this Court. However, after having
preferred an appeal, the State Government accepted the principle that
primary education from 1st to 4th standard should be in mother tongue and
issued a Government Order (GO) dated 19.06.1989 in conformity with the
judgment of the Full Bench of the Karnataka High Court, inter alia,
prescribing that mother tongue shall be the medium of instruction from 1st
to 4th standard while the appeal was pending before this Court.
9) The English Medium Students Parents Association filed a writ petition
under Article 32 before this Court questioning the constitutional validity
of the GO dated 19.06.1989 on the ground that prescription of mother tongue
as the sole language of instruction from 1st to 4th standard was
unconstitutional and violative of Articles 29 and 30 of the Constitution as
it interfered with the right to have primary education at that level in
English.
10) The appeals filed by the Government of Karnataka and the writ
petition filed by the English Medium Students Parents Association were
heard together and decided by a common judgment of this Court in English
Medium Students Parents Association (supra). By order dated 08.12.1993,
this Court upheld the decision of the Full Bench of the Karnataka High
Court. Thereafter, the State Government made an order dated 22.04.1994 in
conformity with the judgment of this Court prescribing that mother tongue
of the children or the regional language shall be the language in which
education shall be imparted from 1st to 4th standard. In the said order,
the State Government exempted the educational institutions to which
permission had been granted earlier to 1989 from giving instruction in
primary education from 1st to 4th standard in mother tongue. This created
incongruity for the reason that in view of the said exemption, there would
be two categories of primary schools in that one set started prior to 1989
with English medium would continue primary education in English whereas
primary schools started after 1989 were bound to impart primary education
in mother tongue. When this contradiction was brought to the notice of the
Government, the Government immediately modified the order dated 22.04.1994
by another order dated 29.04.1994 removing the exemption.
11) The Associated Management of Primary and Secondary Schools,
Karanataka filed Writ Petition No. 14363 of 1994 before the High Court
challenging the constitutional validity of the aforesaid two GOs dated
22.04.1994 and 29.04.1994. The State Government filed its statement of
objection to the writ petition stating that by judgment dated 08.12.1993,
the policy of the State Government prescribing mother tongue as the
language in which the primary education from 1st to 4th standard should be
imparted was constitutionally held valid by this Court and the impugned
orders were similar in that both prescribed that primary education from 1st
to 4th shall be the mother tongue of the children. The Full Bench before
which the said writ petition was posted ultimately concluded on 02.07.2008
holding that the Government orders dated 22.04.1994 and 29.04.1994 were
applicable only to Government and government aided private schools but not
to private and unaided primary schools, though they were also government
recognized schools.
Contentions of the Appellants:
12) Mr. P.P. Rao, learned senior counsel for the State of Karnataka, by
taking us through various articles of the Constitution and the provisions
of the Karnataka Education Act, 1983 and the Right of Children to Free and
Compulsory Education Act, 2009 (in short ‘the RTE Act’) as well as various
decisions of this Court submitted that the High Court committed an error in
not following the decision of this Court in English Medium Students Parents
Association (supra) in which this Court upheld the Government Order
prescribing that primary education shall be in mother tongue. He also
pointed out that the High Court has equally committed an error in holding
that this Court did not go into the question as to whether a parent or a
student has a right to choose the medium of instruction at the primary
school stage when that was the very question raised by the petitioners
therein and rejected by this Court. He further pointed out that the High
Court erred in holding that the parent and the child (“pupil”) have a
fundamental right of the choice of medium of instruction at primary level
as against the policy decision taken by the State in larger national and
educational interest of the children. According to him, the High Court
failed to take note of Article 350A of the Constitution which stipulates
that every endeavor shall be made by the State and Local Authority to
provide adequate facilities for instructions in mother tongue at the
primary stage of education and empower the State to lay down its education
policy that primary education shall be in the mother tongue of the children
concerned. He further contended that the High Court equally committed an
error in holding that primary education shall be in mother tongue only in
respect of government and government aided schools notwithstanding the fact
that all schools belonged to one category as recognized schools and alone
can impart education. Finally, he submitted that the policy of the
Government to have uniform policy in the matter of primary education is not
only applicable to Government and Government Aided institutions but also to
unaided institutions which was approved by this Court in English Medium
Students Parents Association (supra).
13) The individuals claiming as educationalists fighting for Kannada
language who filed writ petition under Article 32 of the Constitution also
adopted the similar arguments.
Contentions of the Respondents:
14) On the other hand, various learned counsel appearing for unaided
Management Schools, Linguistic Minority Institutions, Parents and Students
submitted that the earlier decision of this Court, namely, English Medium
Students Parents Association (supra) did not go into the medium of
instruction and the issue therein was mother tongue/Kannada as one of the
language and parents/children have every right to choose the medium
according to their choice. In their view, the High Court is fully
justified in quashing those offending clauses and there is no merit in any
of the contentions raised by the State and other persons who are all
supporting the stand of the State.
Discussion:
15) We have carefully considered the rival contentions, perused the
constitutional provisions, various clauses in the impugned orders and
decisions relied on by both sides.
16) The entire argument of both the sides is whether in English Medium
Students Parents Association (supra) the issue pertaining to medium of
instruction was contested and a decision was arrived at in that regard? In
light of the above, it is essential to comprehend the ratio laid down in
the said decision to arrive at a decision in this matter.
17) At the cost of repetition, it is useful to reiterate the factual
background of the English Medium Students Parents Association (supra) for
better comprehension. Government of Karnataka, wedded to the cause of
promotion of Kannada language, appointed a Committee of six persons with
Dr. V.K. Gokak as the Chairman and referred the following questions :
(i) Should Sanskrit remain as the subject for study in the school
syllabus?
(ii) If so, how to retain it without its being an alternative for
Kannada?
(iii) Would it be proper to have Kannada as a compulsory subject as
per the three language formula and should the option of selecting the
remaining two languages be left to students themselves?
18) The Committee submitted its report dated 27th January, 1981 which is
popularly known as Dr. Gokak Committee Report. The gist of the
recommendations is as under :
(i) Kannada should be introduced as a compulsory subject for all
children from 3rd Standard;
(ii) Kannada should be the sole first language for the Higher
Secondary Schools (i.e., 8th, 9th and 10th Standards) carrying 150
marks, and this should be implemented for Kannada speaking people from
1981-82 itself and in respect of others from 1986-87, after taking
necessary steps to teach Kannada to them from the 3rd standard from
the academic year 1981-82 itself.
19) On a consideration of the abovesaid report, the State Government
passed an order dated 30.04.1982 drafting a language policy, which stated
that Kannada or mother tongue, shall be the first language. Since it was
felt that the order dated 30.04.1982 did not sufficiently reflect the
aspirations of the Kannada speaking people, the Government thought it
expedient to place the entire matter before the State Legislature. The
State Legislature resolved that in the High Schools, Kannada must be the
sole first regional language carrying 125 marks. In addition, a student
might study any two languages carrying 100 marks each. In accordance with
the above Resolution, the State Government made an order dated 20.07.1982
wherein the government directed that Kannada shall be the sole first
language. Aggrieved by the abovesaid order, some of the educational
institutions preferred writ petitions in the High Court of Karnataka. It
was contended that the order was violative of the rights of minorities
under Articles 29 and 30 of the Constitution of India. Initially, when the
writ petitions came up for hearing before a Single Judge, the matters were
referred to a Division Bench. The Division Bench, by order dated 27.01.1984
referred the abovesaid question to the Full Bench. The full Bench in
General Secretary, Linguistic Minorities Protection Committee (supra)
expressed its opinion as follows:-
“8. ….The Govt. Order dated 20th July, 1982 in so far it relates to
the making of study of Kannada as a compulsory subject to children
belonging to linguistic minority groups from the first year of the
Primary School and compelling the Primary Schools established by
Linguistic Minorities to introduce it as a compulsory subject from the
first year of the Primary School and also in so far it compels the
students joining High Schools to take Kannada as the sole first
language and compelling the high schools established by linguistic
minorities to introduce Kannada as the sole first language in the
Secondary Schools, is violative of Articles 29(1), 30(1) and 14 of the
Constitution.”
After rendering such opinion, the matter was sent back to the Division
Bench for disposal in accordance with the same and, accordingly, the cases
were dismissed by judgment dated 25.01.1989. Against this judgment, the
State of Karnataka came up in appeal in Civil Appeal Nos. 2856-57 of 1989.
20) After the decision of the full Bench, pending the civil appeal before
this Court, the Government of Karnataka issued a GO dated 19.06.1989,
prescribing the mother tongue shall be the medium of instruction from Ist
to 4th standard. The relevant paragraph of the said order is as under:-
“9. …..Govt., are pleased to order that the following language policy
shall be implemented in the primary and Secondary Schools pending
final decision of the Supreme Court.”
“From 1st Standard to IVth Standard, mother tongue will be the medium
of instruction, where it is expected that normally only one language
from Appendix-1 will be the compulsory subject of study….”
The validity of the abovesaid GO was questioned in the Writ Petition No.
536 of 1991 before this Court on the ground that it is violative of
Articles 29, 30 and 14 of the Constitution of India.
21) In the meantime, a corrigendum came to be issued on 22.06.1989, which
reads as under:
“16…For para (i) of Order portion of the above said Govt. order dated
19.6.1989 i.e., from the words "From 1st standard...subject to study"
the following para shall be substituted: -
“From 1st standard to IVth standard, where it is expected that
normally mother tongue will be the medium of instruction, only one
language from Appendix-I will be compulsory subject of study.”
22) With this background, by order dated 08.12.1993, this Court while
upholding the GO dated 19.06.1989 dismissed the writ petition being No. 536
of 1991 as devoid of merits. 23) As regards the Civil Appeal Nos. 2856-57
of 1989 filed against the full Bench decision of the High Court of
Karnataka, it was held that the majority opinion of the High Court has
approached the matter in a proper perspective and concluded as under:-
“25.…..We have no difficulty in upholding the well-considered judgment
of the High court. In fact, the State has accepted the position and
issued G.O. dated 19.6.89 which is impugned in W.P. No. 536 of 1991.
Therefore, the civil appeals will also dismissed. However, in the
circumstances of the case, there shall be no order as to costs.”
24) In the light of the aforesaid order dated 08.12.1993, the Government
of Karnataka issued revised Government Orders dated 22.04.1994/29.04.1994
purporting to re-affirm its policy set out in its earlier order dated
19.06.1989. Now, let us test the contentions of the appellants and the
respondents in light of the above verdict.
25) Learned senior counsel for the appellants contended that GO dated
29.04.1994 is based on the judgment of the full Bench of the Karnataka High
Court as affirmed in English Medium Students Parents Association (supra) by
this Court, therefore, there is no infirmity in the same which came to be
passed in the light of GO dated 19.06.1989.
26) While it is argued from the side of the respondents that judgment in
English Medium Students Parents Association (supra) is with reference to
the GO dated 19.06.1989 whereas the subject matter of the present writ
petition is the GO dated 29.04.1994. Further, it was submitted that in
English Medium Students Parents Association (supra) it was held that the
order dated 19.06.1989 is not open to challenge because there was no
element of compulsion in studying Kannada at the primary stage and that
from standard 1st to 4th where mother tongue will be the medium of
instruction, only one language from Schedule I thereof will be compulsory
and further from standard 3rd onwards Kannada will be an optional subject
for non-Kannada speaking students whereas the GO impugned in this writ
petition departs and deviates from the GO dated 19.06.1989, the validity of
which was upheld by this Court. Kannada is covertly made compulsory by the
present impugned order under clause 2, 3, 6 & 8. Hence, the judgment of
this Court does not and cannot come in the way of considering the present
writ petition on merits. Therefore, the contention of the respondents is
that the fundamental rights of citizens cannot be infringed by the State
taking shelter under the policy.
27) The full Bench of the High Court, by order dated 02.07.2008, decided
the issue in the following words in the impugned judgment:-
“79. It cannot be disputed these clauses were conspicuously missing
in the Government order dated 19.06.1989. They are introduced for the
first time in Government Order dated 29.04.1994. the validity of these
clauses were not the subject matter of earlier proceeding either
before this Court or Apex Court. The Constitutional validity of these
clauses was not challenged earlier, no arguments were addressed for or
against the said clauses, neither this court nor the Apex Court
considered the validity of these clauses nor any decision was
rendered. It is for the first time, the aforesaid clauses are
challenged before this Court. Therefore, the aforesaid decisions do
not conclude the matter in issue in this writ petition.
90. As is clear from the facts set out above in the aforesaid Full
Bench Judgment, the question for consideration was, whether the
Government Order making study of kannada compulsory from the First
Year of primary School in addition to mother tongue of the land was
violative of Article 14, 29 and 30 of the Constitution and the
Government Order prescribing Kannada as sole First language at High
School level was also violative of Article 14, 19 and 30 of the
Constitution. In the Government Order dated 19.06.1989, which was also
the subject matter of the Writ petition under 32 of the Constitution
of India before the Supreme Court, the question was again only one
language from Appendix-I could be the compulsory subject of study. The
full Bench struck down the earlier Government Order as there was
compulsion to study Kannada and therefore violative of Article 19, 21
and 30 which finding was upheld by the Supreme Court. For the same
reason the Supreme Court declined to interfere with the subsequent
Government Order dated 19.06.1989 as there was no compulsion to study
any particular language from I to IV Standard, as is clear from Clause
I of the Government Order. Therefore, the ratio decedendi, of the
Judgment of the Apex Court as well as the full bench is “If there is
an element of compulsion in the Government policy, which infringes the
fundamental rights guaranteed to the citizens of this country under
the Indian Constitution, such policy is void and the fundamental
rights have to prevail over such governmental policy. In the absence
of such compulsion the courts should not interfere with the policy
decision of the Government. The question whether a student, a parent
or a citizen has a right to choose a medium of instruction at primary
stage other than mother tongue or regional language was not the
subject matter of the aforesaid proceedings and the said question was
not considered either by this court or by the Apex Court and no
decision rendered in the aforesaid proceedings on the said point. The
casual expressions, observations, conclusions and the suggestions made
in the earlier full bench judgment cannot be construed as a ratio
decidendi, especially in constitutional matters, as the said question
did not arise for consideration in the said case. Therefore the
contention that the question involved in this Writ Petition are
squarely covered by the earlier decisions of this Court and Apex Court
is without any substance and accordingly it is rejected.”
28) In the line of above observation, the High Court accepted the
contentions of the respondents that this Court in English Medium Students
Parents Association (supra) did not consider the issue raised in the
present writ petition and went on to deliver the impugned judgment.
29) After due consideration of the contentions of the appellants and the
respondents and reasoning of the High Court in the impugned judgment dated
02.07.2008, we are of the view that issue contemplated in the writ petition
before the High Court is not untouched by the decision in English Medium
Students Parents Association (supra). As already mentioned, Writ Petition
No. 536 of 1991 was filed in order to challenge the validity of the GO
dated 19.06.1989 which proposed to introduce mother tongue as the medium of
instruction and the same has been dismissed as devoid of merits. Hence, in
view of the above, this Court upheld the mother tongue as the medium of
instruction in the primary education.
30) However, it is equally correct that the impugned GOs dated
22.04.1994/29.04.1994 were not similar to GO dated 19.06.1989. Since the
said impugned order reframed the earlier order by adding few additional
clauses, which were the matter of dispute in the writ petition before the
High Court and this Court, a reference to the contested clauses in the
impugned order shall be timely:-
“Proceedings of Government of Karnataka
Sub: Regarding implementation of languages Policy in the primary and
high schools.
Government Order No. ED 28 PGC 94
Bangalore dated 29.04.1994
1. xxx
2. The medium of instruction should be mother tongue or Kannada,
with effect from the academic year 1994-95 in all Government
recognized schools in classes 1 to 4.
3. The students admitted to 1st standard with effect from the
academic year 94-95, should be taught in mother tongue or Kannada
medium.
6. Permission can be granted to only students whose mother tongue
is English, to study in English medium in classes 1 to 4 in existing
recognized English medium schools.
8. It is directed that all unrecognized schools which do not comply
with the above conditions, will be closed down.”
Therefore, the contention of the State is partly correct when it says that
the impugned GOs viz., 22.04.1994/29.04.1994 are in substance similar to
GO dated 19.06.1989 since both the GOs stipulated the need for the child to
acquire the primary education in the mother tongue. However, the additional
clauses inserted in the impugned order, viz., Clause Nos. 2, 3, 6 and 8
compels the child to study in mother tongue or regional language which was
seriously contested before the High Court and this Court.
31) While deciding the validity of these additional clauses in the
impugned GO, the High Court further went on to state that the question
whether a student, a parent or a citizen has a right to choose a medium of
instruction at primary stage other than mother tongue or regional language
was not decided in the English Medium Students Parents Association (supra)
case and took the liberty to decide the same.
32) Observing the fact that a two-Judge Bench of this Court has already
arrived at a decision as to the question whether the medium of instruction
should be that of mother tongue in English Medium Students Parents
Association (supra), we are of the view that it is not appropriate to
decide the very same issue under different grounds by a Bench of same
number of judges. If we decide to accept the argument of the respondent
that a student or a parent or a citizen has a right to choose a medium of
instruction at primary stage, we in substance will be contradicting the
judgment in English Medium Students Parents Association (supra), which
upholds the mother tongue as the medium of language.
33) Having given our most anxious consideration, we are of the opinion
that it is a fit case for consideration by a larger bench.
34) The crux of all the grounds raised in the petition is that
whether
the mother tongue or the regional language can be imposed by the State as
the medium of instruction at the primary education stage.
35) The vital question involved in this petition has a far-reaching
significance on the development of the children in our country who are the
future adults.
The primary school years of a child is an important phase in
a child’s education.
Besides, it moulds the thinking process and tutors on
the communication skills.
Thus, primary education lays the groundwork for
future learning and success.
Succinctly, the skills and values that primary
education instills are no less than foundational and serve as bases for all
future learning.
Likewise, the importance of a language cannot be
understated;
we must recollect that reorganization of States was primarily
based on language.
Further, the issue involved in this case concerns about
the fundamental rights of not only the present generation but also the
generations yet to be born.
36) Considering the constitutional importance of these questions, we are
of the firm view that all these matters should be heard by a Constitution
Bench. With regard to the above, the following questions are relevant for
consideration by the Constitution Bench which are as under:-
(i) What does Mother tongue mean? If it referred to as the language in
which the child is comfortable with, then who will decide the same?
(ii) Whether a student or a parent or a citizen has a right to choose a
medium of instruction at primary stage?
(iii) Does the imposition of mother tongue in any way affects the
fundamental rights under Article 14, 19, 29 and 30 of the
Constitution?
(iv) Whether the Government recognized schools are inclusive of both
government-aided schools and private & unaided schools?
(v) Whether the State can by virtue of Article 350-A of the Constitution
compel the linguistic minorities to choose their mother tongue only as
medium of instruction in primary schools?
Apart from the above said issues, the Constitution Bench would also take
into consideration any other ancillary or incidental questions which may
arise during the course of hearing of the case.
37) With regard to the above, all the connected matters including
petitions/applications shall be placed before the Constitution Bench.
Since the matter in issue started in the year 1994, early disposal of the
case is desirable. Hence, the Registry is directed to place the same
before Hon’ble the Chief Justice of India for necessary directions.
..…………….………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
JULY 05, 2013.
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