service matter - an Assistant Wireless Operator was dismissed for misconduct - dis-proportionate quantum of punishment = the punishment of dismissal from service for the kind of misconduct proved against the appellant appears to us to be grossly disproportionate. = while dismissal from service of the appellant is a harsh punishment the order for dismissal could be substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall have the benefit of continuity of service he shall not be entitled to any arrears of pay or other financial benefits for the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court could in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the un-usual but by no means impermissible course of reducing the punishment to the extent indicated above. 16. These appeals are accordingly allowed in the above terms; with a further direction that the respondents shall do the needful expeditiously but not later than three months from the date of this order. No costs.

             published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40530

        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS.5162-63  OF 2013
              (Arising out of SLP (C) Nos.23363-23364 of 2011)


Jai Bhagwan                                  …….Appellant

                                   Versus

Commr. Of Police & Ors.                            …….Respondents





                        J U D G M E N T



T.S. Thakur, J.

1.    Leave granted.

2.    These appeals by special leave  arise  out  of  an  order  dated  21st
October 2010 passed by  the  High  Court  of  Delhi  whereby  Writ  Petition
(Civil) No.5450 of 2005 filed by the  appellant  challenging  his  dismissal
from the post of Assistant Wireless Operator has been dismissed.   An  order
dated 18th February 2011 whereby the High Court  dismissed  Review  Petition
No.72/2011 filed by the appellant has also been assailed by  the  appellant.


3.    The appellant was posted as an Assistant Wireless  Operator  at  Patel
Nagar Police Station,  Delhi.    
A  cabin  was  provided  to  him  for  that
purpose.  
On the night intervening 28/29th July 2001 when Inspector  Harjeet
Singh went for checking the cabin used by the appellant he  found  the  same
locked from inside.  
The Inspector knocked at the door but got  no  response
from within the cabin.  
He then  knocked  the  door  harder  whereupon,  the
appellant shouted at him from inside saying,  “KYA  DARWAJE  KO  TOREGA  BE”
(Are you determined to break the door). When the door was eventually  opened
by the appellant, the Inspector found him wearing  plain  civilian  clothes.
He asked the appellant the reason for not being in proper uniform  to  which
the appellant replied that he liked to dress like that only.  
The  appellant
also refused to give the log book to the Inspector when asked  and  snatched
the same from him when the Inspector picked  it  up  from  the  table.  
The
appellant was, in the above circumstances,  charged  with  misconduct.   The
charge read as under:

           “I, Inspr. Anil  Dureja,  DE  Cell.  Delhi  charge  you  HC  Jai
           Bhagwan, No. 1212/Commn. That while discharging operator Duty at
           Radio a Radio Station P.S. Patel Nagar on the intervening  night
           28/297.2001 from 2000 hrs. to 0800 hrs. Inspr. Harjeet Singh who
           was night checking officer, approached for checking at the  door
           of wireless  cabin at 0035 hrs,    The cabin  was  found  locked
           from inside.  The Inspector knocked the door with little  force,
           you HC Jai Bhagwan shouted from inside in a  very  undisciplined
           manner “kya darwaje ko torego be” you were also found  in  plain
           clothes and when asked the reasons for the same you replied that
           you would like this only.  You also refused to give the log book
           when asked to do so snatched the log book  from  him  which  the
           later had  picked  up  from  the  table.   You  made  irrelevant
           transmission on District No at 0130 hrs  which  aggravated  your
           misconduct.

                 The above act of misbeaviour and misconduct on the part of
           you HC (AWO) Jai Bhagwan No. 1212/Comn. Renders you  liable  for
           punishment under Section 21 D.P.  Act  read  with  Delhi  Police
           (Punishment and Appeal) Rules, 1980.”



4.    An inquiry followed  in  which  the  charges  were  held  proved.  
The
appellant found guilty and was dismissed from service by an order passed  by
the Disciplinary Authority on  29th  March  2002.  
Aggrieved  by  the  said
order, the appellant preferred an appeal  before  the  prescribed  appellate
authority which too failed and  was  dismissed  on  9th  January  2003.  The
appellant then approached the Central Administrative  Tribunal  for  redress
but remained unsuccessful even there. He next approached the High  Court  of
Delhi in Writ Petition No.5450 of 2005 before whom he  urged  five  distinct
grounds against the order  of  dismissal.   It  was  firstly  urged  by  the
appellant that a copy of  the  preliminary  inquiry  conducted  by  the  DCP
Communication and relied upon by the Inquiry Officer was never  supplied  to
him thereby causing prejudice to the appellant. It was secondly  urged  that
Inspector Harjeet Singh had  improved  upon  his  version  inasmuch  as  the
narrative given by him in the first report and  that  given  in  the  second
report were  materially  different.  Thirdly,  it  was  contended  that  DCP
Communication could not act as the Disciplinary  Authority  inasmuch  as  it
was he who had conducted the fact  finding  inquiry  that  gave  rise  to  a
likelihood of bias.  The fourth submission urged on behalf of the  appellant
before the High Court  related  to  the  appellant’s  version  that  he  was
medically advised against wearing the police  uniform  on  account  of  some
kind of skin allergy. It was lastly contended that the allegations  that  he
was sleeping inside the wireless cabin was unsupported by any  evidence  and
that the punishment of dismissal from service awarded  to  him  was  in  any
case much too harsh, unreasonable and disproportionate  to  the  gravity  of
the misconduct, to be countenanced by the Court.

5.    The High Court examined each of these  contentions  and  rejected  the
same by an order that is impugned in the present appeals.   The  High  Court
took pains to look into the evidence on record to  find  out  whether  there
was any perversity in the view taken  by  the  disciplinary  authority,  the
appellate authority, or the Tribunal and found none.  Even on  the  question
of quantum of punishment, the High Court held that  the  petitioner  had  no
case inasmuch as the incident in question was one of gross indiscipline  and
the penalty of dismissal from service was justified.

6.    We have heard learned counsel for  the  parties  at  some  length  and
perused  the  orders  under  challenge.  The  charges  framed  against   the
appellant  have  been  held  proved  by  the  disciplinary  authority,   the
appellate authority and even by the Tribunal concurrently.  The  High  Court
reviewed those findings and found nothing perverse about  the  same.   There
is in that view no room for our interference on that account.   In  fairness
to learned counsel for the appellant we must mention that even  he  did  not
make any serious attempt to assail the concurrent findings of fact  recorded
against the appellant. We have, therefore, no hesitation  in  affirming  the
said findings.

7.     What  was  argued  by  learned  counsel  for   the   appellant   with
considerable  tenacity  was  the  dis-proportionality  of  the  quantum   of
punishment imposed upon the appellant.  It was contended  that  the  charges
against the  appellant  were  limited  to  using  rude  language  against  a
superior officer who had come to check the wireless cabin  provided  to  the
appellant. The fact that the appellant was not in proper uniform or  took  a
little more time than necessary in opening the door also did not  materially
add to the gravity to the misconduct, if any.   Dismissal from  service  for
such a minor act of misdemeanor was according  to  learned  counsel  totally
unreasonable and disproportionate even assuming that the  charges  had  been
satisfactorily proved.  Relying upon the  decision  of  this  Court  in  Ram
kishan v. Union of India  (1995)  6  SCC  157  it  was  contended  that  the
delinquent was in that case also charged with an act like  the  one  alleged
against the appellant.  This Court had, however, stepped  in  to  set  aside
the order of dismissal passed by the disciplinary authority and reduced  the
punishment to stoppage of two increments only.  It was urged that a  similar
order in the instant case would meet the ends of justice.

8.    On behalf of the respondent, it was submitted that the conduct of  the
appellant was highly objectionable and unbecoming of any one serving in  the
police force where the need for maintaining discipline  is  paramount.   Any
leniency towards those responsible for such  misconduct  was,  according  to
the learned counsel, bound to encourage others to  commit  similar  or  more
serious acts of indiscipline and misconduct which  will  not  be  in  public
interest as it is bound to  undermine  discipline  as  a  value,  erode  the
efficacy of the police force and shake the confidence of the people  in  its
efficiency.  It was also submitted that the appellant had not only sent  out
an unwarranted message on the wireless regarding the incident but  had  gone
to the extent of making a false  accusation  against  the  Inspector,  which
aggravated  the  appellant’s  misconduct  wholly  unbecoming  of  a   police
officer.  A  false  charge  implicating  his  superior  for  using  casteist
remarks was a serious matter.  Dismissal from service, in that view was  the
only punishment which the appellant  deserved  and  with  which  this  Court
ought not to interfere.

9.    What is the appropriate quantum of  punishment  to  be  awarded  to  a
delinquent is a  matter  that  primarily  rest  in  the  discretion  of  the
disciplinary authority.  An authority sitting in appeal over any such  order
of punishment is by all means entitled to examine the  issue  regarding  the
quantum of punishment as much as it  is  entitled  to  examine  whether  the
charges have been  satisfactorily  proved.   But  when  any  such  order  is
challenged before a Service Tribunal or  the  High  Court  the  exercise  of
discretion  by  the  competent  Authority  in   determining   and   awarding
punishment is generally respected except where the same is found  to  be  so
outrageously disproportionate to the gravity  of  the  misconduct  that  the
Court considers it be arbitrary in  that  it  is  wholly  unreasonable.  The
superior Courts and the Tribunal  invoke  the  doctrine  of  proportionality
which has been gradually accepted as one of the facets of  judicial  review.
A punishment that is so excessive or disproportionate to the offence  as  to
shock the conscience of the Court is seen as unacceptable even  when  Courts
are  slow  and  generally  reluctant  to  interfere  with  the  quantum   of
punishment.    The law on the  subject  is  well  settled  by  a  series  of
decisions rendered by this Court.  We remain content with reference to  only
some of them.

10.   In Ranjit Thakur v. Union of India (1987) 4 SCC 611, this  Court  held
that the doctrine of proportionality, as part of  the  concept  of  judicial
review, would ensure that even on an aspect which is, otherwise, within  the
exclusive province of the Court-Martial, if the  decision  even  as  to  the
sentence is in defiance of logic, then the quantum of sentence would not  be
immune  from  correction.    Irrationality  and  perversity,  observed  this
Court, are recognized grounds of judicial review. The following  passage  is
apposite in this regard:

           “the doctrine of proportionality, as  part  of  the  concept  of
           judicial review, would ensure that even on an aspect  which  is,
           otherwise, within the exclusive province of  the  Court-Martial,
           if the decision even as to sentence is an in defiance of  logic,
           then  the  quantum  of  sentence  would  not  be   immune   from
           correction.    Irrationality  and  perversity   are   recognized
           grounds of judicial review”.



11.   Similarly, in Dev Singh  v.  Punjab  Tourism  Development  Corporation
limited (2003) 8 SCC 9, this Court, following Ranjit Thakur’s  case  (supra)
held:

           “…a court sitting in an appeal against a punishment  imposed  in
           the disciplinary proceedings will not  normally  substitute  its
           own conclusion on penalty. However, if the punishment imposed by
           the disciplinary authority or the appellate authority shocks the
           conscience of the court then the court would appropriately mould
           the relief either by  directing  the  disciplinary/  appropriate
           authority to reconsider the penalty imposed or  to  shorten  the
           litigation it may make an exception in  rare  cases  and  impose
           appropriate punishment with cogent reasons in  support  thereof.
           It is also clear from the above noted judgments of  this  court,
           if the punishment  imposed  by  the  disciplinary  authority  is
           totally disproportionate to the misconduct  proved  against  the
           delinquent officer, then the court would  interfere  in  such  a
           case.”




12.   Reference may also be made to the decisions of this Court in Union  of
India v. Ganayutham (1997) 7 SCC 463,  Ex-Naik  Sardar  Singh  v.  Union  of
India (1991) 3 SCC 213 and Om Kumar v. Union of  India  (2001)  2  SCC  386,
which reiterate the same proposition.

13.   Coming to the case at hand we are of the view that the  punishment  of
dismissal from service  for  the  kind  of  misconduct  proved  against  the appellant appears to  us  to  be  grossly  disproportionate.  
There  is  no
allegation that the appellant had manhandled the police  Inspector  who  had
gone to check the cabin.
Delay of 10 minutes in  opening  the  cabin  door,
which according to the appellant was open  but  had  got  stuck  because  of
humidity leading to expansion of the wooden frame, was  not  a  matter  that
ought to have led to the appellant’s  dismissal  after  he  had  served  the
police force for over 10 years.
Even assuming that  the  version  given  by
the appellant was not acceptable the same did not  constitute  a  misconduct
of a kind that would justify the appellant’s dismissal from service  leading
to forfeiture of his past service.
That the appellant  was  not  in  uniform
may also be breach of discipline calling for administrative  action  against
him but not so severe as to throw him out of the police force.
The  analogy
drawn by the appellant in this case and that of Ram  Kishan’s  case  (supra)
is not, therefore, wholly misplaced.
The delinquent in that  case  too  was
charged with misbehaviour with his superior leading to  his  dismissal  from
service which was found by this Court to be disproportionate to  the  nature
of misconduct calling for moderation.

14.   Having said that we cannot ignore the  fact  that  the  appellant  had
falsely accused the Inspector of having used casteist  abuses  to  humiliate
him which allegation on an inquiry was found to be  totally  false.  
It  is
obvious that the appellant had tried to use the caste card  only  to  escape
punishment for the misconduct and indiscipline committed by him.  
There  is
no manner of doubt that an allegation like the one  made  by  the  appellant
could have resulted  in  his  prosecution  and  dismissal  of  the  superior
officer from service.  
The appellant’s case in that  view  is  not  on  all
four corners of Ram Krishna to call for such leniency as was  shown  to  Ram
Krishna.

15.   In the totality of these circumstances, we are of the view that
while
dismissal from service of the appellant is a harsh punishment the order  for dismissal could be substituted by an order of reduction to  the  rank  of  a constable with the  direction  that  while  the  appellant  shall  have  the benefit of continuity of service he shall not be entitled to any arrears  of pay or  other  financial  benefits  for  the  period  between  the  date  of dismissal and the date of  his  reinstatement  against  the  lower  post  of constable.  
We are conscious of the  fact  that  this  Court  could  in  the
ordinary course remit the matter back  to  the  disciplinary  authority  for passing  a  fresh  order  of  punishment  considered  proper  but   we   are deliberately avoiding that course.  
We are doing so  because  the  order  of dismissal of the appellant was passed in the year 2001.  
A  remand  at  this distant point of time is likely to lead to further delay and  litigation  on the subject which is  not  in  the  interest  of  either  party.   
We  have,
therefore, upon an anxious thought as to the quantum of punishment  that  is appropriate taken the un-usual but  by  no  means  impermissible  course  of reducing the punishment to the extent indicated above.

16.   These appeals are accordingly allowed  in  the  above  terms;  with  a
further direction that the respondents shall do  the  needful  expeditiously
but not later than three months from the date of this order.  No costs.

                                                         …………..…………………...…J.
                                         (T.S. THAKUR)


                                                          ………….…………………...…J.
                                                         (GYAN SUDHA MISRA)
New Delhi
July 5, 2013

Alteration of conviction under sec302 to sec. 325 IPC = .In a sudden fight a simple act of throwing stone does not comes under sec. 302 without the prosecution proving the intention and motive on the part of accused who has no previous score with the deceased = .In the course of that altercation appellant No.2 does appear to have hurled a stone towards the deceased which hit and injured him but there is nothing to show that the injury was by itself sufficient to cause death in the ordinary course nor is there anything to show that there was any pre-concert between the appellant-Manoj and his father to kill the deceased. In the absence of any evidence, let alone evidence that is reliable and cogent, to show that appellant No.2 intended to cause death or shared the intention to cause death with his son, it is difficult to sustain his conviction for murder punishable under Section 302 of the IPC. The prosecution has not even alleged a motive against appellant No.2. The motive based on illicit relationship between appellant-Manoj and the wife of the deceased, could hardly be attributed to appellant No.2, no matter, the incident started with an altercation in which even he got involved. The sudden fight between the appellants on the one hand and the deceased on the other, escalated into a tragedy for the deceased but the responsibility for the gruesome assault, cannot be shifted from Manoj who used a dangerous weapon like a Sword to fatally injury the deceased. The stone thrown by appellant No.2 may have triggered the incident to its ugly end but beyond that appellant No.2 cannot be attributed the responsibility of murder with or without the assistance of Section 34 of the IPC. Appellant No.2 can at best be held guilty of causing grievous hurt to the deceased punishable under Section 325 of the IPC. = The conviction of appellant No.2 is, however, altered from Section 302 read with Section 34 IPC to Section 325 IPC. Appellant No.2 has been in jail for nearly 3½ years now which sentence should, in our opinion, suf

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40529

                                                        REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.852 OF 2013
                (Arising out of S.L.P (Crl.) No.2597 of 2012)


Manoj and Anr.                                     …Appellants




      Versus


State of Karnataka                                 …Respondent










                               J U D G M E N T



T.S. THAKUR, J.



1.    Leave granted.

2.    This appeal by special leave arises out of a judgment and order  dated
15th November, 2011 passed by the High Court of Karnataka, Circuit Bench  at
Gulbarga, whereby Criminal Appeal No.3643 of 2009 filed  by  the  appellants
has been partially allowed upholding their  conviction  and  sentence  under
Section 302 read with Section 34 IPC, but  setting  aside  their  conviction
under Section 506 read with Section 34 of the IPC.

3.    Briefly stated the prosecution case is that the deceased Sadashiv was
unhappy about appellant No.1-Manoj visiting his house and associating  with
his wife for he suspected an illicit intimacy  between  the  two.  He  had,
therefore, forbidden Manoj from coming to his house and in case he  did  so
he had threatened to kill him.  The  prosecution  story  is  that  on  30th
August, 2006 at about 12 noon appellant No.1-Manoj and his father-appellant
No.2 assaulted the deceased while the latter was in front of a  shop  owned
by one Khilari near Babanagar bus stand within the limits of Tikota  Police
Station. While appellant No.2 is alleged to  have  assaulted  the  deceased
with a stone on his head appellant No.1-Manoj is said to have given several
blows to the deceased with a sword injuring him on his neck, head and face.
The incident, was allegedly seen  by  five  eye  witnesses,  some  of  whom
carried the injured to the Police Station from where he was referred to the
District Hospital for treatment. The deceased, however, passed away  before
reaching the hospital leading to the registration of  a  case  against  the
father and the son under Sections 302 and 506 read with Section 34  of  the
IPC.  A charge-sheet was in  due  course  filed  against  the  two  accused
persons before the jurisdictional Magistrate who committed the  accused  to
face trial before the Principal District and Sessions  Judge,  Bijapur.  At
the trial, the prosecution examined as many  as  22  witnesses  apart  from
placing reliance upon  several  documents  marked  as  Exs.P1  to  P24  and
material objects MOs1 to 12.  In their statements  recorded  under  Section
313 of the Cr.P.C., the accused persons  denied  the  charges  and  pleaded
innocence. No evidence was, however, adduced by them in defence.  The trial
Court eventually came to the conclusion that prosecution had  brought  home
the guilt of the accused persons for offences punishable under Sections 302
and 506 read with Section 34 of the IPC.

4.    The appellants were accordingly sentenced to undergo imprisonment  for
life besides a  fine  of  Rs.10,000/-  each  for  offence  punishable  under
Section 302 read with Section 34  of  the  IPC  and  a  sentence  of  simple
imprisonment for one year and a fine of Rs.2,000/- each  under  Section  506
read with Section 34 of the IPC.

5.    Aggrieved  by  their  conviction  and  the  sentence,  the  appellants
appealed to the High Court of Karnataka, Circuit Bench at Gulbarga  who  has
in terms of the judgment impugned in this  appeal  affirmed  the  conviction
and the sentence under Section 302 read with Section 34 IPC awarded  by  the
trial Court but set aside the conviction  and  sentence  under  Section  506
read with Section 34 IPC, as noticed above. The present appeal  assails  the
correctness of the said judgments and orders of the Courts below.

6.    We have heard at some length learned Counsel for the parties who  have
taken us through the evidence adduced at the trial.   Out  of  22  witnesses
examined at the trial by the prosecution,  PWs-4,  5,  7,  17  and  19  have
turned hostile. No support is available from  the  deposition  of  the  said
witnesses to the prosecution  story.  PW-8-Shrishail  Shettappa  Shelannavar
and PW-18-Mahadev have, however, fully supported  the  prosecution  version.
PW-16-Padawwa-wife  of  the  deceased  has  also  appeared  to  support  the
prosecution case. We  shall  briefly  refer  to  the  depositions  of  these
witnesses especially because the judgments delivered by the trial Court  and
the High Court have found the same to be credible and placed  reliance  upon
them for holding the appellants guilty.

7.     PW-8-Shrishail  Shettappa  Shelannavar  deposed  that  the   incident
leading to the death of the deceased-Sadashiv took place  near  a  hotel  at
Babanagar at 11:30 a.m. in the morning.  According to the  witness,  he  had
come out of the hotel (the witness means a roadside Dhaba) after taking  tea
only to find that a verbal altercation was going on between the  accused  on
the one hand and the deceased-Sadashiv on the other. It was  in  the  course
of this altercation that appellant No.2-Amagond threw a  stone  at  Sadashiv
which hit the latter on his head. On receiving the injury the deceased  fell
to the ground whereupon appellant No.1-Manoj inflicted injuries on his  neck
and other parts of the body  with  a  sword.   Seeing  the  assault  on  the
deceased, people from the hotel  vicinity  started  running  helter-skelter.
The deceased was removed from the site in a  vehicle  after  the  appellants
escaped from the place of occurrence. The witness identified the  sword  and
the stone with which the deceased was assaulted by the appellants.

8.    In cross-examination, the witness stood  by  his  version  and  stated
that he often goes to the hotel (dhaba) situate  near  Babanagar  bus  stand
whenever he does not have  to  attend  to  any  urgent  work.   The  witness
further stated that he had cordial relations with the  accused  persons  but
did not question them about the reason for  the  assault  on  the  deceased.
None of those on the spot had  come  to  the  rescue  of  Sadashiv  who  was
sitting alone before the  assault  started.   The  witness  denied  being  a
relative of the deceased Sadashiv or that he was  deposing  falsely.   There
is nothing in the cross-examination  of  this  witness  that  may  lend  any
support to the defence nor has the deposition of the witness been  shattered
in cross-examination.

9.    Coming then to the statement  of  PW-18-Mahadev,  the  witness  stated
that the deceased was his elder brother and lived four to five  houses  away
from his house at Babanagar.  The appellants were also known to the  witness
whom he identified.  The witness stated that appellant-Manoj used  to  visit
the house of Sadashiv giving rise to a suspicion in his mind that  his  wife
had  illicit  intimacy  with  said  appellant.   The  deceased  had   warned
appellant-Manoj in that regard and asked him not to visit his  house.   Such
warnings were given to the deceased nearly fifteen days before the  date  of
the incident despite which the appellant-Manoj had  come  to  the  house  of
Sadashiv two days  prior  to  the  occurrence  whereupon  the  deceased  had
threatened Manoj that he would kill him if he visited again.

10.   On the date of occurrence at about  12  noon  the  witness  and  PW-8-
Shrishail  Shettappa  Shelannavar  were  sitting  in  front  of  the   dhaba
belonging to one Allisab after taking tea.  The deceased was  at  that  time
sitting in front of the dhaba of one Suresh  and  smoking  a  beedi  on  the
opposite side of the road.  It was then that  the  appellants  came  to  the
spot.  Manoj was armed with a sword while appellant No.2-his  father  had  a
stone. He threw the stone towards the deceased that hit  him  on  his  head.
Because of the injury the deceased fell down whereafter the  Appellant-Manoj
gave to the deceased  four  to  five  blows  with  the  sword  that  he  was
carrying. The witness and Shrishail Shettappa Shelannavar  tried  to  rescue
the victim but Manoj threatened to kill them if they intervened.  After  the
incident, the appellants ran away from the spot thinking that  Sadashiv  was
dead.  The witness then brought water for the deceased to save his  life  as
he was bleeding profusely from the head and neck.  They  took  the  deceased
to the Tikota Police Station in  a  Tom  Tom  vehicle  wherefrom  they  were
referred to a District Hospital at  Bijapur  with  a  constable  deputed  to
accompany them.  While going to the hospital the deceased succumbed  to  his
injuries whereupon they returned to the Police Station  to  lodge  a  report
about the incident.  The witness identified the sword and the stone used  by
the appellants in the course of the incident.

11.   We may also at this stage refer to the  deposition  of  PW-16-Padawwa-
wife of the deceased. This witness has  supported  the  prosecution  version
inasmuch as she stated that the appellant-Manoj used to visit her  house  to
talk to her on account of which her husband entertained  a  suspicion  about
her fidelity. The deceased had admonished the appellant and  asked  him  not
to come to his house and if he did so he would kill him.   On  the  date  of
the occurrence the deceased left his house for the bus stand in the  morning
but around 12:30 p.m. some people residing  in  the  neighbourhood  informed
her that the appellant- Manoj had assaulted the deceased with a sword  while
appellant No.2 had inflicted an injury upon his  head  with  a  stone.   She
rushed to the spot to find that the deceased was alive and water  was  being
poured in his mouth by the  people  present  including  Mahadev,  Gopal  and
Shrishail who took the deceased to Tikota Police Station. The  witness  also
accompanied them.

12.   The medical evidence adduced in the case comprises the  deposition  of
Dr. Nandini who conducted the post mortem examination on  the  deceased  and
opined that the death was due to hemorrhagic shock secondary to  hypovolemic
shock.  The following external injuries were found on the body  of  deceased
which were certified by him to be ante-mortem:

           “(a) Cut lacerated wound of about 4 x 1  cm  deep  present  over
           right angle of eye frontal bone fracture seen.

           (b) Crush injury on left cheek 3’x half inch deep.

           (c) Cut lacerated wound over left angle of mouth 4’ x half  inch
           deep.

           (d) Cut lacerated wound 5 cm present over  extensor  surface  of
           wrist on medial side.

           (e) CLW of about 5 x 2 and half inch present over upper neck  of
           leftside, C2 vertebra fracture present.”




13.   The witness opined that these injuries were sufficient to cause  death
in the ordinary course of nature. The witness further stated that while  the
crush injury noted by him on the dead body could be caused with  stone  MO.2
the other injuries could be caused by MO.1 Hatiyar (sword).  The FSL  report
(Ex.P.19) which was also pressed into service  by  prosecution  proved  that
the blade portion of sword (MO.1) and stone (MO.2) were blood stained.

14.   There is, in our opinion, no manner of doubt that the three witnesses
referred to earlier have clearly testified about  the  sequence  of  events
leading to the death of  Sadashiv  which  version  has  been  found  to  be
reliable by the Courts below. We see no reason to strike a discordant  note
for there is hardly any infirmity in  the  depositions  referred  to  above
which have stood the test of lengthy cross-examination by the defence. That
the deceased suspected his wife’s fidelity and  an  illicit  intimacy  with
appellant-Manoj is sufficiently proved from the deposition of the widow  of
the deceased, Shreshiala and Mahadev the other two  witnesses  referred  to
above. It is also evident from the said depositions that the  deceased  had
forbidden the appellant-Manoj from coming to his house  and  threatened  to
kill him in case he did so again. This happened shortly before the incident
in question. The mutual relationship between the deceased and the appellant-
Manoj was thus embittered.  On the date of the occurrence the  presence  of
the deceased around the bus stand where the occurrence took place has  also
been sufficiently proved by the deposition of the witnesses  including  the
police witnesses who have prepared the site plan and made seizures from the
spot. So, also the   presence of the two eye witnesses on the spot  at  the
time of occurrence in a place like a bus stand is in  no  way  abnormal  to
cast any doubt about their credibility. The medical evidence adduced at the
trial too supports the ocular version. The doctor has clearly reported that
the crush injury on the face could be caused by the stone (MO.2) while  the
other injury could have been inflicted by the sword  which  appellant-Manoj
was allegedly carrying at the time of the incident.  The presence of  human
blood on these two objects sufficiently supports the prosecution case  that
the said weapons were used for the commission of the offence.

15.   Learned Counsel for the appellants, however, argued that even  though
appellant-Manoj was alleged to have used the sword to inflict  injuries  on
the deceased, the role played by appellant No.2 was restricted to  throwing
a stone towards the deceased.  Even when the stone  had  caused  an  injury
there was nothing to show  that  it  was  intended  to  kill  the  deceased
especially when it is not the case of the prosecution that even  after  the
stone had hit the deceased the assault was continued by appellant No.2 with
or without the help of appellant No.1-Manoj.  There is  considerable  merit
in that submission. Even according to PW-8-Shrishail Shettappa  Shelannavar
when he stepped out of the dhaba, he found a verbal  altercation  going  on
between the deceased and the  accused  persons.
In  the  course  of  that
altercation appellant No.2 does appear to have hurled a stone  towards  the
deceased which hit and injured him but there is nothing to  show  that  the
injury was by itself sufficient to cause death in the ordinary  course  nor
is there anything to show  that  there  was  any  pre-concert  between  the
appellant-Manoj and his father to kill the deceased. 
In the absence of  any
evidence, let alone evidence that is reliable  and  cogent,  to  show  that
appellant No.2 intended to cause death or shared  the  intention  to  cause
death with his son, it is difficult to sustain his  conviction  for  murder
punishable under Section 302 of the  IPC.  The  prosecution  has  not  even
alleged a motive against  appellant  No.2.  
The  motive  based  on  illicit
relationship between appellant-Manoj and the wife of  the  deceased,  could hardly be attributed to appellant No.2, no  matter,  the  incident  started with an altercation in which even he got involved. 
The sudden fight between
the appellants on the one hand and the deceased  on  the  other,  escalated into a tragedy for the deceased but the  responsibility  for  the  gruesome assault, cannot be shifted from Manoj who used a dangerous  weapon  like  a Sword to fatally injury the deceased.  
The stone thrown by  appellant  No.2
may have triggered the incident to its ugly end but beyond  that  appellant No.2 cannot be attributed the responsibility of murder with or without  the assistance of Section 34 of the IPC. 
Appellant No.2 can  at  best  be  held guilty of causing grievous hurt to the deceased  punishable  under  Section 325 of the IPC.

16.   In the result,
 we dismiss this appeal insofar  as  appellant-Manoj  is
concerned and uphold his conviction under Section 302 IPC and  the  sentence awarded to him. 
The conviction of appellant No.2 is, however,  altered  from
Section 302 read with Section 34 IPC to Section  325  IPC.   Appellant  No.2 has been in jail for nearly 3½ years  now  which  sentence  should,  in  our opinion, suffice. 
Appellant No.2 is accordingly  sentenced  to  imprisonment
already undergone  by  him.  
He  shall  be  released  from  custody  if  not
otherwise required in connection with any other case.  
The sentence of  fine
imposed upon the said appellant shall however remain unaltered.



                                                             ………………...…………J.
                                                               (T.S. THAKUR)



                                                             …………………...………J.
                                                          (GYAN SUDHA MISRA)
New Delhi
July 5, 2013

whether the mother tongue or the regional language can be imposed by the State as the medium of instruction at the primary education stage.= 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. (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?= 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.

               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.
















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