Education -Instructions of Medium only in mother tongue or Kannada - constitutional court declared as un constitutional - Karnataka govt. Medium of Instruction - Govt. issued Order dt . 29.04.1994 imposing mother tongue or Kannada only from 1st stand. to IV th stand. permission was given only to English mother tongue student to shift to English medium after V th stand. - Constitutional court Declared as invalid - We accordingly hold that State has no power under Article 350A of the Constitution to compel the linguistic minorities to choose their mother tongue only as a medium of instruction in primary schools.=
The Government of Karnataka issued a Government Order dated
19.06.1989 prescribing that “from 1st standard to IVth standard, mother
tongue will be the medium of instruction”.
On 22.06.1989, the Government
of Karnataka issued a corrigendum substituting the aforesaid words in the
earlier Government Order dated 19.06.1989 by the following words:
“from 1st standard to IVth standard, where it is expected that
normally mother tongue will be the medium of instruction.”
The orders dated 19.06.1989 and 22.06.1989 were challenged before this
Court and a Division Bench of this Court in its judgment dated 08.12.1993
in English Medium Students Parents Association v. State of Karnataka & Ors.
[(1994) 1 SCC 550] held that the two orders of the Government of Karnataka
were constitutionally valid.
3. Thereafter, in cancellation of all earlier orders pertaining to the
subject, the Government of Karnataka issued a fresh order dated
29.04.1994 regarding the language policy to be followed in primary
and high schools with effect from the academic year 1994-1995.
Clauses 2 to 8 of the Government Order dated 29.04.1994, with which
we are concerned in this reference, are extracted hereinbelow:-
“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.
4. However, permission can be granted to the schools to continue
to teach in the pre-existing medium to the students of standards
2 to 4 during the academic year 94-95.
5. The students are permitted to change over to English or any
other language as medium at their choice, from 5th standard.
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.
7. The Government will consider regularization of the existing
unrecognized schools as per policy indicated in paragraphs 1 to 6
mentioned above. Request of schools who have complied with the
provisions of the code of education and present policy of the
government will be considered on the basis of the report of the
Zilla Panchayat routed through commissioner for public
instructions.
8. It is directed that all unauthorized schools which do not
comply with the above conditions, will be closed down.”
Thus, these clauses of the Government order dated 29.04.1994 provided that
medium of instruction should be mother tongue or Kannada with effect from
the academic year 1994-1995 in all Government recognized schools in classes
I to IV and the students can be permitted to change over to English or any
other language as medium of their choice from class V. The Government
Order dated 29.04.1994, however, clarified that permission can be granted
to only those students whose mother tongue is English, to study in English
medium in classes I to IV in existing recognized English medium schools.
=
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 ?
We have extracted Article 350A of the Constitution above and we have
noticed that in this Article it is provided that it shall be the endeavour
of every State and of every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the primary
stage of education to children belonging to linguistic minority groups.
We
have already held that a linguistic minority under Article 30(1) of the
Constitution has the right to choose the medium of instruction in which
education will be imparted in the primary stages of the school which it has
established.
Article 350A therefore cannot be interpreted to empower the
State to compel a linguistic minority to choose its mother tongue only as a
medium of instruction in a primary school established by it in violation of
this fundamental right under Article 30(1).
We accordingly hold that State
has no power under Article 350A of the Constitution to compel the
linguistic minorities to choose their mother tongue only as a medium of
instruction in primary schools.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41504
R.M. LODHA, A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, FAKKIR MOHAMED IBRAHIM KALIFULLA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.5166-5190 OF 2013
State of Karnataka & Anr. … Appellants
Versus
Associated Management of (Government
Recognised – Unaided – English Medium)
Primary & Secondary Schools & Ors. … Respondents
WITH
WRIT PETITION (C) No.290 of 2009
Nallur Prasad & Ors. … Appellants
Versus
State of Karnataka & Ors. … Respondents
CIVIL APPEAL Nos.5191-5199 OF 2013
R.G. Nadadur & Ors. … Appellants
Versus
Shubodaya Vidya Samasthe & Anr. … Respondents
AND
CIVIL APPEAL No. 5090 OF 2014
(Arising out of S.L.P. (C) No.32858 of 2013)
State of Karnataka & Ors. … Appellants
Versus
Mohamed Hussain Jucka … Respondent
J U D G M E N T
A. K. PATNAIK, J.
Leave granted in S.L.P. (C) No.32858 of 2013.
Facts leading to the reference to the Constitution Bench:
2. The Government of Karnataka issued a Government Order dated
19.06.1989 prescribing that “from 1st standard to IVth standard, mother
tongue will be the medium of instruction”. On 22.06.1989, the Government
of Karnataka issued a corrigendum substituting the aforesaid words in the
earlier Government Order dated 19.06.1989 by the following words:
“from 1st standard to IVth standard, where it is expected that
normally mother tongue will be the medium of instruction.”
The orders dated 19.06.1989 and 22.06.1989 were challenged before this
Court and a Division Bench of this Court in its judgment dated 08.12.1993
in English Medium Students Parents Association v. State of Karnataka & Ors.
[(1994) 1 SCC 550] held that the two orders of the Government of Karnataka
were constitutionally valid.
3. Thereafter, in cancellation of all earlier orders pertaining to the
subject, the Government of Karnataka issued a fresh order dated
29.04.1994 regarding the language policy to be followed in primary
and high schools with effect from the academic year 1994-1995.
Clauses 2 to 8 of the Government Order dated 29.04.1994, with which
we are concerned in this reference, are extracted hereinbelow:-
“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.
4. However, permission can be granted to the schools to continue
to teach in the pre-existing medium to the students of standards
2 to 4 during the academic year 94-95.
5. The students are permitted to change over to English or any
other language as medium at their choice, from 5th standard.
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.
7. The Government will consider regularization of the existing
unrecognized schools as per policy indicated in paragraphs 1 to 6
mentioned above. Request of schools who have complied with the
provisions of the code of education and present policy of the
government will be considered on the basis of the report of the
Zilla Panchayat routed through commissioner for public
instructions.
8. It is directed that all unauthorized schools which do not
comply with the above conditions, will be closed down.”
Thus, these clauses of the Government order dated 29.04.1994 provided that
medium of instruction should be mother tongue or Kannada with effect from
the academic year 1994-1995 in all Government recognized schools in classes
I to IV and the students can be permitted to change over to English or any
other language as medium of their choice from class V. The Government
Order dated 29.04.1994, however, clarified that permission can be granted
to only those students whose mother tongue is English, to study in English
medium in classes I to IV in existing recognized English medium schools.
4. Aggrieved by the clauses of the Government Order dated 29.04.1994
which prescribed that the medium of instruction in classes I to IV in
all Government recognized schools will be mother tongue or Kannada
only, the Associated Management of Primary and Secondary Schools in
Karnataka filed Writ Petition No.14363 of 1994 and contended inter
alia that the right to choose the medium of instruction in classes I
to IV of a school is a fundamental right under Articles 19(1)(a),
19(1)(g), 26, 29 and 30(1) of the Constitution and that the impugned
clauses of the order dated 29.04.1994 of the Government of Karnataka
are ultra vires the Constitution. The State of Karnataka and its
officers, on the other hand, relied on the decision of the Division
Bench of this Court in English Medium Students Parents Association v.
State of Karnataka & Ors. (supra) and contended that the State in
exercise of its power to regulate primary education can, as a matter
of policy, prescribe that the medium of instruction in classes I to
IV would be in mother tongue of the child or Kannada. The State of
Karnataka also contended that Article 350A of the Constitution casts
a duty on the State to provided adequate facilities for instruction
in the mother tongue at the primary stage of education to children
belonging to linguistic minority groups and the Government of
Karnataka, after considering a report of experts in the field of
education, has prescribed in the Government Order dated 29.04.1994
that medium of instruction for children studying in classes I to IV
shall be in the mother tongue of the child.
5. A Full Bench of the Karnataka High Court heard the writ petition and
all other connected writ petitions and in its common judgment dated
02.07.2008, held:
“(1) Right to education is a fundamental right being a species of
right to life flowing from Article 21 of the Constitution. By
virtue of Article 21-A right to free and compulsory primary
education is a fundamental right guaranteed to all children of the
age of six to fourteen years. The right to choose a medium of
instruction is implicit in the right to education. It is a
fundamental right of the parent and the child to choose the medium
of instruction even in primary schools.
(2) Right to freedom of speech and expression includes the right to
choose a medium of instruction.
(3) Imparting education is an occupation and, therefore, the right
to carry on any occupation under Article 19(1)(g) includes the
right to establish and administer an educational institution of
one's choice. 'One's choice' includes the choice of medium of
instruction.
(4) Under Article 26 of the Constitution of India every religious
denomination has a right to establish and maintain an institution
for charitable purposes which includes an educational institution.
This is a right available to majority and minority religious
denominations.
(5) Every section of the society which has a distinct language
script or culture of its own has the fundamental right to conserve
the same. This is a right which is conferred on both majority and
minority, under Article 29(1) of the Constitution.
(6) All minorities, religious or linguistic, have a right to
establish and administer educational institutions of their choice
under Article 30(1) of the Constitution.
(7) Thus, every citizen, every religious denomination, and every
linguistic and religious minority, have a right to establish,
administer and maintain an educational institution of his/its
choice under Articles 19(1)(g), 26 and 30(1) of the Constitution
of India, which includes the right to choose the medium of
instruction.
(8) No citizen shall be denied admission to an educational
institution only on the ground of language as stated in Article
29(2) of the Constitution of India.
(9) The Government policy in introducing Kannada as first language
to the children whose mother tongue is Kannada is valid. The policy
that all children, whose mother tongue is not Kannada, the official
language of the State, shall study Kannada language as one of the
subjects is also valid. The Government policy to have mother tongue
or regional language as the medium of instruction at the primary
level is valid and legal, in the case of schools run or aided by
the State.
(10) But, the Government policy compelling children studying in
other Government recognized schools to have primary education only
in the mother tongue or the regional language is violative of
Article 19(1) (g), 26 and 30(1) of the Constitution of India.”
The High Court accordingly allowed the writ petitions and quashed clauses
2, 3, 6 and 8 of the Government order dated 29.04.1994 in their application
to schools other than schools run or aided by the Government but upheld
rest of the Government order dated 29.04.1994.
6. Aggrieved by the judgment dated 02.07.2008 of the Full Bench of the
High Court, the State of Karnataka and the Commissioner of Public
Instruction, Bangalore, have filed Civil Appeal Nos.5166-5190 of
2013. Fifteen educationists claiming to be keen that primary
education in the State of Karnataka from I to IV standard should be
in the mother tongue of the child or Kannada have also filed Writ
Petition (C) No.290 of 2009 for declaring that the Government Order
dated 29.04.1994 is constitutionally valid in respect of unaided
Government recognised primary schools and for a writ of mandamus
directing the State Government to implement the Government Order
dated 29.04.1994.
7. As the judgment dated 02.07.2008 of the Full Bench of the High Court
was not implemented for more than a year, a Division Bench of the
High Court passed an order dated 03.07.2009 in Writ Appeal No.1682 of
2009 and other connected matters asking the Government of Karnataka
to comply with the judgment dated 02.07.2008 of the Full Bench of the
High Court and aggrieved by the said order dated 03.07.2009 in Writ
Appeal No.1682 of 2009, different officers of the Education
Department of the Government of Karnataka have filed Civil Appeal
Nos.5191-5199 of 2013.
8. A learned Single Judge of the Karnataka High Court directed the State
of Karnataka in Writ Petition No.3044 of 1994 to grant permission to
an institution to run English medium school from 1st standard to 4th
standard by order dated 22.01.1996. The order of the learned Single
Judge was challenged before the Division Bench of the High Court in
Writ Appeal No.2740 of 1997, but on 21.02.2012 the Division Bench of
the High Court dismissed the writ appeal saying that the order dated
08.07.2008 of the Full Bench of the High Court in Associated
Management of Primary and Secondary Schools in Karnataka v. The State
of Karnataka & Ors. has not been stayed by this Court in the Special
Leave Petition under Article 136 of the Constitution. Aggrieved by
the order dated 21.02.2012 passed by the Division Bench in Writ
Appeal No.2740 of 1997, the State of Karnataka has filed Special
Leave Petition (C) No.32858 of 2013.
The questions referred to the Constitution Bench:
9. All these matters were heard by a Division Bench of this Court and on
05.07.2013, the Division Bench passed an order referring the
following questions for consideration by the Constitution Bench:
“(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 affect 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?”
In its order dated 05.07.2013, the Division Bench also observed that the
Constitution Bench may take into consideration ancillary or incidental
questions which may arise during the course of hearing of the cases and
further directed that all other connected matters including
petitions/applications shall be placed before the Constitution Bench.
Contentions of learned counsel for the State of Karnataka:
10. At the hearing before the Constitution Bench, Professor Ravi Varma
Kumar, the learned Advocate General for the State of Karnataka,
submitted that the State Reorganization Commission, 1955 in
paragraphs 773 to 777 of its report has referred to the resolution
adopted at the Provincial Education Ministers’ Conference held in
August, 1949 that the medium of instruction and examination in the
junior basic stage must be the mother tongue of the child and that
the mother tongue of the child will be the language declared by the
parent or guardian to be the mother tongue. He submitted that this
resolution adopted at the Provincial Education Ministers’ Conference
held in August, 1949, has been approved by the Government of India
and now serves as a guide for the State Governments in making
arrangements for the education of the school-going children in the
respective States. He submitted that after the report of the State
Reorganization Commission, 1955, Article 350A has been introduced in
the Constitution providing that it shall be the endeavour of every
State and of every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the
primary stage of education to children belonging to a linguistic
minority group.
11. The learned Advocate General submitted that, in this background, the
Government order dated 29.04.1994 was issued by the Government of
Karnataka prescribing that the medium of instruction for children
studying in classes I to IV in all primary schools recognized by the
Government will be mother tongue or Kannada from the academic year
1994-95. He cited the judgment of the Division Bench of this Court
in English Medium Students Parents Association v. State of Karnataka
& Ors. (supra) to submit that experts are unanimous in their view
that the basic knowledge can easily be acquired by a child through
his mother tongue and that the State Government has the power to lay
down a policy prescribing that the medium of instruction for children
studying in I to IV standards in all Government recognized schools in
Karnataka will be Kannada or mother tongue.
12. The learned Advocate General next submitted that the High Court was
not right in coming to the conclusion that the right to freedom of
speech and expression guaranteed under Article 19(1)(a) of the
Constitution includes the right to choose a medium of instruction and
that in exercise of this right, it is a fundamental right of the
parents and the child to choose a medium of instruction in the
primary schools. He submitted that similarly the High Court was not
right in coming to the conclusion that the right to establish and
administer an educational institution under Articles 19(1)(g) and 26
of the Constitution will include the right to choose a medium of
instruction. He submitted that in any case if the State takes a
policy decision that the medium of instruction for the children
studying in classes I to IV will be their mother tongue, such a
policy decision of the State Government will be within the regulatory
powers of the State. He cited the judgment of this Court in Gujarat
University & Anr. v. Shri Krishna Ranganath Mudholkar & Ors. [AIR
1963 SC 703] in which a Constitution Bench of this Court has taken
the view that the State Legislature has the regulatory power to
legislate on medium of instruction in institutions of primary or
secondary education. He submitted that under Article 162 of the
Constitution, the State Government has executive powers co-extensive
with its legislative powers and therefore the Government order dated
29.04.1994 prescribing that the medium of instruction of all children
studying in classes I to IV will be mother tongue was well within the
powers of the State Government. He argued that even if it is held
that children and parents have a right to choose a medium of
instruction for classes I to IV or that citizens who have established
schools have a fundamental right under Article 19(1)(g) of the
Constitution to choose the medium in which education will be imparted
to the children studying in their schools, the State could restrict
their right by virtue of its regulatory powers and prescribe that a
medium of instruction for children studying in classes I to IV will
be their mother tongue.
13. The learned Advocate General next submitted that the High Court was
again not right in coming to the conclusion that the Government
policy compelling children studying in schools recognized by the
Government to have primary education only in mother tongue or the
regional language is violative of Article 30(1) of the Constitution.
He submitted that so long as the State permits a medium of
instruction to be the same as the language of the minority community
which has established the educational institution, the fundamental
rights under Article 29(1) and 30(1) of the Constitution are not
violated because the purport of Articles 29(1) and 30(1) of the
Constitution is to promote the language of every community including
the language of a linguistic minority. He cited State of Bombay v.
Bombay Education Society & Ors. [AIR 1954 SC 561] wherein a
Constitution Bench of this Court has held that a minority group such
as the Anglo-Indian community, which is based, inter alia, on
religion and language, has the fundamental right to conserve its
language, script and culture under Article 29(1) and has the right to
establish and administer educational institutions of its choice under
Article 30(1) and, therefore, there must be implicit in such
fundamental right, the right to impart education in its own
institution to the children of its own community in its own language.
He also cited D.A.V. College, etc. etc. v. State of Punjab & Ors.
[(1971) 2 SCC 269] wherein a Constitution Bench of this Court has
held that the purpose and object of linguistic States is to provide
greater facility for the development of the people of that area
educationally, socially and culturally in the language of that region
but while the State or the University has every right to provide for
the education of the majority in the regional medium, it is subject
to the restrictions contained in Articles 25 to 30 of the
Constitution and accordingly neither the University nor the State
could impart education in a medium of instruction in a language and
script which stifles the language and script of any section of the
citizens. According to him, the rights under Articles 29(1) and
30(1) of the Constitution are thus not affected by the order dated
29.04.1994 of the Government of Karnataka because it prescribes that
the students in classes I to IV will be imparted education in the
medium of instruction of the mother tongue of the children and the
mother tongue of the children will be none other than the language of
their linguistic community.
14. The learned Advocate General further submitted that this Court has
held in Usha Mehta & Ors. v. State of Maharashtra & Ors. [(2004) 6
SCC 264] that the State can impose reasonable regulations for
protecting the larger interests of the State and the nation even in
the case of minority educational institutions enjoying the right
under Article 30(1) of the Constitution and the “choice” that could
be exercised by the minority community in establishing educational
institutions is subject to such reasonable regulations imposed by the
State, but while imposing regulations, the State shall be cautious
not to destroy the minority character of institutions. He argued
that the Government Order dated 29.04.1994 by providing that the
medium of instruction of children studying in classes I to IV in
primary schools will be the mother tongue of the children does not in
any way destroy the minority character of the institutions protected
under Article 30(1) of the Constitution.
15. The learned Advocate General submitted that the High Court has relied
on the judgment of this Court in T.M.A. Pai Foundation & Ors. v.
State of Karnataka & Ors. [(2002) 8 SCC 481] in coming to the
conclusion that the Government order dated 29.04.1994 violates the
fundamental rights under Articles 19(1)(g) and 30(1) of the
Constitution. He submitted that the High Court has not noticed some
of the paragraphs of the majority judgment in T.M.A. Pai Foundation &
Ors. v. State of Karnataka & Ors. (supra) in coming to its
conclusions. He referred to the paragraph 54 of the aforesaid
majority judgment in which it has been held that the right to
establish and maintain institutions for religious and charitable
purposes under Articles 19(1)(g) and 26(a) of the Constitution is
subject to regulations made by the State for maintaining educational
standards etc. He referred to paragraph 115 of the majority judgment
in which it has also been held that the right of the religious and
linguistic minorities to establish and administer educational
institutions of their choice is not absolute and that such
institutions have to follow statutory measures regulating educational
standards etc. He submitted that in paragraph 122 of the majority
judgment in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.
(supra), however, it has been held that such regulations must satisfy
the test of reasonableness. He submitted that the Government Order
dated 29.04.1994 prescribing that the medium of instruction for all
children studying in classes I to IV in primary schools in the State
of Karnataka would be the mother tongue of the children is a
regulatory measure and satisfies the test of reasonableness.
16. The learned Advocate General finally submitted that Article 21A of
the Constitution is titled ‘Right to Education’ and provides that the
State shall provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State may, by
law, determine. He argued that Article 21A is thus the sole
depository of the right to education and it is not open for any
citizen to invoke any other fundamental right like Article 19(1)(a)
or Article 21 to contend that he has a right to be educated in a
medium of instruction of his choice. He submitted that Parliament
has made the Right of Children to Free and Compulsory Education Act,
2009 under Article 21A of the Constitution, and Section 29(2)(f) of
this Act provides that the medium of instruction shall, as far as
practicable, be the child’s mother tongue. He submitted that the
High Court was, therefore, not right in coming to the conclusion that
the right to choose a medium of instruction is implicit in the right
to education under Articles 21 and 21A of the Constitution.
Contentions on behalf of the respondents who support the Government order
dated 29.04.1994:
17. Mr. K. N. Bhat, learned senior counsel appearing for respondent nos.
2, 5, 6, 7, 9, 10, 11, 15, 17 and 18 in Civil Appeal No.5166 of 2013,
submitted that mother tongue is the language in which the child is
the most comfortable. He cited Usha Mehta & Ors. v. State of
Maharashtra & Ors. (supra) in which a three-Judge Bench of this Court
clearly held that the State can impose reasonable regulations in the
larger interests of the State and the nation even on institutions
established by religious and linguistic minorities and protected
under Article 30(1) of the Constitution and that the word ‘choice’ in
Article 30 of the Constitution is subject to such regulation imposed
by the State. He submitted that the only caution that the State has
to exercise is that by imposing such regulations the minority
character of the institutions is not destroyed. He submitted that
accordingly if the State Government has issued the order dated
29.04.1994 under Article 162 of the Constitution prescribing that the
medium of instruction for all children studying in classes I to IV
would be mother tongue, such an order being regulatory in nature and
not affecting the minority character of the institutions, does not in
any way affect the right guaranteed under Article 30(1) of the
Constitution. He submitted that the conclusion of the High Court
that the Government Order dated 29.04.1994 insofar as it compels
minority institutions to adopt medium of instruction for students
studying in classes I to IV as mother tongue is violative of right
under Article 30 of the Constitution, therefore, is not correct.
18. Mr. Bhat next submitted that Article 19(1)(a) of the Constitution
guarantees the right to freedom of speech and expression to all
citizens and the only restrictions that the State can impose on this
right are those mentioned in Article 19(2) of the Constitution. He
submitted that a reading of Article 19(2) of the Constitution will
show that it empowers the State to make law imposing reasonable
restrictions in the interest of the sovereignty and integrity of
India, the security of the State, friendly relation with foreign
States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence, but does not
empower the State to impose reasonable restrictions in the interest
of general public. He vehemently argued that if the right to freedom
of speech and expression is interpreted so as to include the right to
choose the medium of instruction, the State will have no power to
impose any reasonable restrictions in the larger interests of the
State or the nation on this right to choose the medium of instruction
and such an interpretation should be avoided by the Court. He
submitted that the rationale of the right to freedom of speech and
expression in Article 19(1)(a) of the Constitution and the power of
the State to impose reasonable restrictions under Article 19(2) of
the Constitution in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence, have been explained
in the judgments of P.B. Sawant, J. and B.P. Jeevan Reddy, J. in
Secretary, Ministry of Information & Broadcasting, Government of
India & Ors. v. Cricket Association of Bengal & Ors. [(1995) 2 SCC
161]. He submitted that considering these serious consequences which
may arise if we take the view that the right to freedom of speech and
expression includes the right to choose medium of instruction, we
should leave this question open if it is not necessary to decide it
in this case.
Contentions on behalf of the respondents who challenge the Government order
dated 29.04.1994:
19. Mr. Mohan V. Katarki, learned counsel appearing for respondent no.1
in Civil Appeal No.5166 of 2013, submitted that under Article 350A of
the Constitution, the State has no power to compel any educational
institution to adopt mother tongue as the medium of instruction. He
submitted that Article 350A of the Constitution only casts a duty on
every State and every local authority within the State to provide
adequate facilities for instruction in the mother- tongue at the
primary stage of education to children belonging to linguistic
minority groups, and does not empower the State to interfere with
right to freedom of speech and expression and the right to establish
and administer schools under Article 19 of the Constitution.
20. Mr. Katarki submitted that the reliance placed by the State on the
decision of this Court in English Medium Students Parents Association
v. State of Karnataka & Ors. (supra) in which the earlier Government
Order dated 22.06.1989 prescribing mother tongue as the medium of
instruction was upheld is misplaced as the reason given by this Court
in the aforesaid decision for upholding the order dated 22.06.1989 of
the State Government is that the order did not have an element of
compulsion. He submitted that the Government order dated 29.04.1994,
on the other hand, makes it compulsory for all Government recognized
schools including private unaided schools to adopt mother tongue of
the child as the medium of instruction in classes I to IV.
21. Mr. Katarki submitted that this Court has held in Unni Krishnan,
J.P. & Ors. v. State of Andhra Pradesh & Ors. [(1993) 1 SCC 645] that
the right to education of a child up to the age of 14 years is part
of the right to life under Article 21 of the Constitution and,
therefore, the High Court was right in coming to the conclusion that
the right to be educated in the medium of instruction of the choice
of the child is also part of the right under Article 21 of the
Constitution. He submitted that similarly the right to freedom of
speech and expression will include the right to choose the medium of
instruction in which the child is to be educated and the High Court
was, therefore, right in coming to the conclusion that compelling a
child to be educated through a particular medium of instruction, such
as his mother tongue, is violative of his right under Article
19(1)(a) of the Constitution.
22. Mr. Katarki next submitted that Article 30(1) of the Constitution
confers on religious and linguistic minority communities the right to
establish and administer educational institutions of their choice and
the word “choice” clearly indicates that the State cannot compel an
institution established by a religious or linguistic minority to
impart education in their institution to the children of classes I to
IV only in the mother tongue of the children. In support of this
submission, he relied on the decisions of this Court in In re The
Kerala Education Bill, 1957 [1959 SCR 995], Rev. Father W. Proost &
Ors. v. The State of Bihar & Ors. [1969 (2) SCR 73], D.A.V. College,
etc. etc. v. State of Punjab & Ors. (supra), D.A.V. College,
Bhatinda, etc. v. The State of Punjab & Ors. (supra) and The
Ahmedabad St. Xavier’s College Society & Anr. v. State of Gujarat &
Anr. [(1974) 1 SCC 717]. He submitted that even the educational
institutions which have not been established by a religious or
linguistic minority have a right to freedom under Articles 19(1)(g)
and 26 of the Constitution and in exercise of this right, they have a
right to choose the medium of instruction in which they want to
impart education to their students. In support of this proposition,
he relied on the majority judgment in T.M.A. Pai Foundation & Ors. v.
State of Karnataka & Ors. (supra) and P.A. Inamdar & Ors. v. State of
Maharashtra & Ors. [(2005) 6 SCC 537].
23. Mr. G.R. Mohan, appearing for respondent Nos.10 and 11 in Civil
Appeal No.5186 of 2013, while adopting the aforesaid submissions of
Mr. Katarki, further submitted that Article 26(3) of the Universal
Declaration of Human Rights adopted by the members of the United
Nations including India provides that parents have a prior right to
choose the kind of education that shall be given to their children.
Mr. K.V. Dhananjay, learned counsel appearing for some of the
respondents, also adopted the submissions of Mr. Katarki.
Our answers to the five questions referred to us:
24. Question No.(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?”.
As this question is referred to us in context of our Constitution, we have
to answer this question by interpreting the expression “mother tongue” as
used in the Constitution. We must not forget that the Constitution is not
just an ordinary Act which the court has to interpret for the purpose of
declaring the law, but is a mechanism under which the laws are to be made.
As Kania C.J. observed in A.K. Gopalan v. State of Madras (AIR 1950 SC 27):
“Although we are to interpret words of the Constitution on the
same principles of interpretation as we apply to any ordinary
law, these very principles of interpretation compel us to take
into account the nature and scope of the Act that we are
interpreting – to remember that it is a Constitution, a
mechanism under which laws are to be made and not a mere Act
which declares what the law is to be.”
The only provision in the Constitution which contains the expression
“mother tongue” is Article 350A. We must therefore understand why Article
350A was inserted in the Constitution. The State Reorganization
Commission, 1955, made recommendations for reorganizing the States on
linguistic basis. In Part IV of its report, the State Reorganization
Commission, 1955, has devoted Chapter I to “safeguards for linguistic
groups” and has recommended that the linguistic minorities of the States
should have the right to instruction in mother tongue. In support of this
recommendation, the State Reorganization Commission, 1955, has relied on
the resolution adopted at the Provincial Education Ministers’ Conference
held in August, 1949, which had been approved by the Government of India
and which had served as a guide to the State Governments in making
arrangements for the education of the school-going children whose mother
tongue is different from the regional language. This resolution is
extracted hereinbelow:
“The medium of instruction and examination in the junior basic
stage must be the mother tongue of the child and, where the
mother tongue is different from the regional or State language,
arrangements must be made for instruction in the mother tongue
by appointing at least one teacher, provided there are not less
than 40 pupils speaking the language in the whole school or 10
such pupils in a class. The mother tongue will be the language
declared by the parent or guardian to be the mother tongue. The
regional or State language, where it is different from the
mother tongue, should be introduced not earlier than Class III
and not later than the end of the junior basic stage. In order
to facilitate the switching-over to the regional language as
medium in the secondary stage, children should be given the
option of answering questions in their mother tongue, for the
first two years after the junior basic stage.”
From the aforesaid resolution adopted at the Provincial Education
Ministers’ Conference held in August, 1949, and from the recommendations of
the State Reorganization Commission, 1955, it is clear that while
recommending language as the basis for reorganization of the States in
India, the Commission wanted to ensure that the children of the linguistic
minority which had a language different from the language of the State were
imparted education at the primary stage in their mother tongue. In the
resolution adopted at the Provincial Education Ministers’ Conference held
in August, 1949, extracted above, it was also clarified that the mother
tongue will be the language declared by the parent or guardian to be the
mother tongue.
25. After the recommendations of the State Reorganization Commission,
1955, Article 350A was inserted in the Constitution by the
Constitution (VIIth Amendment) Act. Article 350A reads:
“It shall be the endeavour of every State and of every local
authority within the State to provide adequate facilities for
instruction in the mother tongue at the primary stage of
education to children belonging to linguistic minority groups;
and the President may issue such directions to any State as he
considers necessary or proper for securing the provision of such
facilities.”
A mere reading of Article 350A of the Constitution would show that it casts
a duty on every State and every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the primary
stage of education to children belonging to linguistic minority groups.
Hence, the expression ‘mother tongue’ in Article 350A means the mother
tongue of the linguistic minority group in a particular State and this
would obviously mean the language of that particular linguistic minority
group.
26. Mother tongue in the context of the Constitution would, therefore,
mean the language of the linguistic minority in a State and it is the
parent or the guardian of the child who will decide what the mother
tongue of child is. The Constitution nowhere provides that mother
tongue is the language which the child is comfortable with, and while
this meaning of “mother tongue” may be a possible meaning of the
‘expression’, this is not the meaning of mother tongue in Article
350A of the Constitution or in any other provision of the
Constitution and hence we cannot either expand the power of the State
or restrict a fundamental right by saying that mother tongue is the
language which the child is comfortable with. We accordingly answer
question no.(i).
27. Question No.(ii): Whether a student or a parent or a citizen has a
right to choose a medium of instruction at primary stage ?
The High Court has held that the parent or a child has a right to choose
medium of instruction in primary schools as part of the right to freedom of
speech and expression under Article 19(1)(a) of the Constitution and the
right to choose the medium of instruction is also implicit in the right to
education under Articles 21 and 21A of the Constitution. We have to decide
whether these conclusions of the High Court that the parent or a child has
a right to choose the medium of instruction in primary schools as part of
the right to freedom of speech and expression under Article 19(1)(a) of the
Constitution and also has a right to choose the medium of instruction in
primary schools under Articles 21 and 21A of the Constitution are correct.
28. Article 19 of the Constitution is titled “Right to Freedom” and it
states that all citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) x x x
(g) to practise any profession, or to carry on any occupation,
trade or business.
The word ‘freedom’ in Article 19 of the Constitution means absence of
control by the State and Article 19(1) provides that the State will not
impose controls on the citizen in the matters mentioned in sub-clauses
(a),(b),(c),(d),(e) and (g) of Article 19(1) except those specified in
clauses 2 to 6 of Articles 19 of the Constitution. In all matters
specified in clause (1) of Article 19, the citizen has therefore the
liberty to choose, subject only to restrictions in clauses (2) to (6) of
Article 19.
29. One of the reasons for giving this liberty to the citizens is
contained in the famous essay ‘On Liberty’ by John Stuart Mill. He
writes:
“Secondly, the principle requires liberty of tastes and pursuits;
of framing the plan of our life to suit our own character; of doing
as we like, subject to such consequences as may follow: without
impediment from our fellow creatures, so long as what we do does
not harm them, even though they should think our conduct foolish,
perverse, or wrong.”
According to Mill, therefore, each individual must in certain matters be
left alone to frame the plan of his life to suit his own character and to
do as he likes without any impediment and even if he decides to act
foolishly in such matters, society or on its behalf the State should not
interfere with the choice of the individual. Harold J. Laski, who was not
prepared to accept Mill’s attempts to define the limits of State
interference, was also of the opinion that in some matters the individual
must have the freedom of choice. To quote a passage from “A Grammar of
Politics” by Harold J. Laski:
“My freedoms are avenues of choice through which I may, as I deem
fit, construct for myself my own course of conduct. And the
freedoms I must possess to enjoy a general liberty are those which,
in their sum, will constitute the path through which my best self
is capable of attainment. That is not to say it will be attained.
It is to say only that I alone can make that best self, and that
without those freedoms I have not the means of manufacture at my
disposal.”
Freedom or choice in the matter of speech and expression is absolutely
necessary for an individual to develop his personality in his own way and
this is one reason, if not the only reason, why under Article 19(1)(a) of
the Constitution every citizen has been guaranteed the right to freedom of
speech and expression.
30. This Court has from time to time expanded the scope of the right to
freedom of speech and expression guaranteed under Article 19(1)(a) of
the Constitution by consistently adopting a very liberal
interpretation. In Romesh Thappar v. The State of Madras [AIR 1950
SC 124], this Court held that freedom of speech and expression
includes freedom of propagation of ideas which is ensured by freedom
of circulation and in Sakal Papers (P) Ltd. v. Union of India [AIR
1962 SC 305], this Court held that freedom of speech and expression
carries with it the right to publish and circulate one’s ideas,
opinions and views. In Bennett Coleman & Co. v. Union of India
[(1972)2 SCC 788], this Court also held that the freedom of press
means right of citizens to speak, publish and express their views as
well as right of people to read and in Odyssey Communications (P)
Ltd. v. Lokvidayan Sanghatana [(1988) 3 SCC 410], this Court has
further held that freedom of speech and expression includes the right
of citizens to exhibit films on Doordarshan.
31. This Court also went into the question whether receiving information
or education by a citizen was part of his right to freedom of speech
and expression in Secretary, Ministry of Information & Broadcasting,
Government of India & Ors. v. Cricket Association of Bengal & Ors.
(supra) and held that the right to freedom of speech and expression
in Article 19(1(a) of the Constitution will not only include the
right to impart information but also the right to receive
information. In his opinion, P.B. Sawant, J. observed that the right
to freedom of speech and expression also includes the right to
educate, to inform and to entertain and also the right to be
educated, informed and entertained. In line with the earlier
decisions of this Court, we are of the view that the right to freedom
of speech and expression under Article 19(1)(a) of the Constitution
includes the freedom of a child to be educated at the primary stage
of school in a language of the choice of the child and the State
cannot impose controls on such choice just because it thinks that it
will be more beneficial for the child if he is taught in the primary
stage of school in his mother tongue. We, therefore, hold that a
child or on his behalf his parent or guardian, has a right to freedom
of choice with regard to the medium of instruction in which he would
like to be educated at the primary stage in school. We cannot accept
the submission of the learned Advocate General that the right to
freedom of speech and expression in Article 19(1)(a) of the
Constitution does not include the right of a child or on his behalf
his parent or guardian, to choose the medium of instruction at the
stage of primary school.
32. We cannot also accept the submission of Mr. Bhat that if the right to
freedom of speech and expression in Article 19(1)(a) of the
Constitution is held to include the right to choose the medium of
instruction at the stage of primary school, then the State will have
no power under clause (2) of Article 19 to put reasonable
restrictions on the right to freedom of speech and expression except
in the interest of sovereignty and integrity of India, the security
of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation
or incitement to an offence. In our view, the Constitution makers
did not intend to empower the State to impose reasonable restrictions
on the valuable right to freedom of speech and expression of a
citizen except for the purposes mentioned in clause (2) of Article 19
of the Constitution because they thought that imposing other
restrictions on the freedom of speech and expression will be harmful
to the development of the personality of the individual citizen and
will not be in the larger interest of the nation. In the words of
Pantanjali Shastri speaking for the majority of the judges in Romesh
Thappar v. The State of Madras (supra):
“Thus, very narrow and stringent limits have been set to
permissible legislative abridgment of the right of free speech
and expression and this was doubtless due to the realisation
that freedom of speech and of the press lay at the foundation of
all democratic organisations, for without free political
discussion no public education, so essential for the proper
functioning of the processes of popular Government, is possible.
A freedom of such amplitude might involve risks of abuse. But
the framers of the Constitution may well have reflected with
Madison who was ‘the leading spirit in the preparation of the
First Amendment of the Federal Constitution’, that “it is better
leave a few of its noxious branches to their luxuriant growth
than, by pruning them away, to injure the vigour of those
yielding the proper fruits” (Quoted in Near v. Minnesotta, 283
U.S. 607 at 717-8).”
Therefore, once we come to the conclusion that the freedom of speech and
expression will include the right of a child to be educated in the medium
of instruction of his choice, the only permissible limits of this right
will be those covered under clause (2) of Article 19 of the Constitution
and we cannot exclude such right of a child from the right to freedom of
speech and expression only for the reason that the State will have no power
to impose reasonable restrictions on this right of the child for purposes
other than those mentioned in Article 19(2) of the Constitution.
33. We may now consider whether the view taken by the High Court in the
impugned judgment that the right to choose a medium of instruction is
implicit in the right to education under Articles 21 and 21A of the
Constitution is correct. Article 21 of the Constitution provides
that no person shall be deprived of his life or personal liberty
except according to procedure established by law. In Unni Krishnan,
J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra), a Constitution
Bench of this Court has held that under Article 21 of the
Constitution every child/citizen of this country has a right to free
education until he completes the age of 14 years. Article 21A of the
Constitution provides that the State shall provide free and
compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine. Under
Articles 21 and 21A of the Constitution, therefore, a child has a
fundamental right to claim from the State free education upto the age
of 14 years. The language of Article 21A of the Constitution further
makes it clear that such free education which a child can claim from
the State will be in a manner as the State may, by law, determine.
If, therefore, the State determines by law that in schools where free
education is provided under Article 21A of the Constitution, the
medium of instruction would be in the mother tongue or in any
language, the child cannot claim as of right under Article 21 or
Article 21A of the Constitution that he has a right to choose the
medium of instruction in which the education should be imparted to
him by the State. The High Court, in our considered opinion, was not
right in coming to the conclusion that the right to choose a medium
of instruction is implicit in the right to education under Articles
21 and 21A of the Constitution. Our answer to Question No.(ii),
therefore, is that a child, and on his behalf his parent or guardian,
has the right to choose the medium of instruction at the primary
school stage under Article 19(1)(a) and not under Article 21 or
Article 21A of the Constitution.
34. Question No.(iii): Does the imposition of mother tongue in any way
affect the fundamental rights under Article 14, 19, 29 and 30 of the
Constitution?
As the High Court has not come to the conclusion in the impugned judgment
that imposition of mother tongue in any way affects the fundamental right
under Article 14 of the Constitution, it is not necessary for us to decide
this question. We will have to decide whether imposition of mother tongue
in any way affects the fundamental rights under Articles 19, 29 and 30 of
the Constitution.
35. Articles 29(1) and 30(1) of the Constitution are quoted hereinbelow:
29. Protection of interests of minorities:- (1) Any section of the
citizens residing in the territory of India or any part thereof having
a distinct language, script or culture of its own shall have the right
to conserve the same.
30.Right of minorities to establish and administer educational
institutions:- (1) All minorities, whether based on religion or
language, shall have the right to establish and administer educational
institutions of their choice.”
A reading of clause (1) of Article 29 of the Constitution provides that any
section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have
the right to conserve the same and clause (1) of Article 30 provides that
all minorities, whether based on religion or language, shall have the right
to establish and administer educational institutions of their choice.
36. In D.A.V. College, Bhatinda, etc. v. The State of Punjab & Ors.
(supra), the Punjabi University in exercise of its power under
Section 4(2) of Punjabi University Act (35 of 1961), made Punjabi the
sole medium of instruction and examination in all colleges affiliated
under Punjabi University. It was contended inter alia before this
Court that prescription of such medium of instruction and examination
in a language which is not the mother tongue of the minority which
has established the educational institution is violative of the
rights conferred under clause (1) of Article 29 and clause (1) of
Article 30 of the Constitution and the Constitution Bench of this
Court has upheld this contention in the following words:
“The right of the minorities to establish and administer
educational institutions of their choice would include the right
to have a choice of the medium of instruction also which would
be the result of reading Article 30(1) with Article 29(1).”
Thus, a Constitution Bench of this Court in D.A.V. College, Bhatinda, etc.
v. The State of Punjab & Ors. (supra) has already held that minorities have
a right to establish and administer educational institutions of ‘their
choice’, and therefore they have the choice of medium of instruction in
which education will be imparted in the institutions established and
administered by them.
37. The contention of the learned Advocate General, however, is that the
aforesaid decision and other decisions of this Court have been
rendered in cases where the State imposed a medium of instruction in
a language different from the language of the minority community, but
if the State prescribes the medium of instruction to be the mother
tongue of the child, which is the language of the minority community,
there is no violation of the right of the linguistic minority under
Article 30(1) of the Constitution. We do not find any merit in this
contention because this Court has also held that the “choice” of the
minority community under Article 30(1) need not be limited to
imparting education in the language of the minority community. In re
The Kerala Education Bill, 1957 (supra), S.R. Das, CJ, writing the
majority opinion of a seven Judge Bench of this Court, held:
“23. Having disposed of the minor point referred to above, we
now take up the main argument advanced before us as to the
content of Art. 30(1). The first point to note is that the
article gives certain rights not only to religious minorities
but also to linguistic minorities. In the next place, the right
conferred on such minorities is to establish educational
institutions of their choice. It does not say that minorities
based on religion should establish educational institutions for
teaching religion only, or that linguistic minorities should
have the right to establish educational institutions for
teaching their language only. What the article says and means
is that the religious and the linguistic minorities should have
the right to establish educational institutions of their choice.
There is no limitation placed on the subjects to be taught in
such educational institutions. As such minorities will
ordinarily desire that their children should be brought up
properly and efficiently and be eligible for higher university
education and go out in the world fully equipped with such
intellectual attainments as will make them fit for entering the
public services, educational institutions of their choice will
necessarily include institutions imparting general secular
education also. In other words, the article leaves it to their
choice to establish such educational institutions as will serve
both purposes, namely, the purpose of conserving their religion,
language or culture, and also the purpose of giving a thorough,
good general education to their children.”
38. We may now examine whether an unaided non-minority school has a
similar right to choose a medium of instruction under Article
19(1)(g) of the Constitution at the primary school stage. Under
Article 19(1)(g) of the Constitution, a citizen has the right to
practise any profession, or to carry on any occupation, trade or
business. In T.M.A. Pai Foundation & Ors. v. State of Karnataka &
Ors. (supra), Kirpal C.J. writing the majority judgment interpreted
this right under Article 19(1)(g) of the Constitution to include the
right to establish and run educational institutions. In paragraph 25
of the aforesaid judgment in T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. (supra), the majority judgment held:
“The establishment and running of an educational institution
where a large number of persons are employed as teachers or
administrative staff, and an activity is carried on that results
in the imparting of knowledge to the students, must necessarily
be regarded as an occupation, even if there is no element of
profit generation. It is difficult to comprehend that
education, per se, will not fall under any of the four
expressions in Article 19(1)(g). “Occupation” would be an
activity of a person undertaken as a means of livelihood or a
mission in life. ”
Thus, the word “occupation” in Article 19(1)(g) of the Constitution was
interpreted by the majority judgment of this Court in T.M.A. Pai Foundation
& Ors. v. State of Karnataka & Ors. (supra), to include the activity which
results in imparting of knowledge to the students even if there is no
element of profit generation in such activity. However, unlike Article
30(1) of the Constitution, Article 19(1)(g) does not have the word
“choice”. The absence of the word “choice”, in our considered opinion,
does not make a material difference because we find that Article 19 of the
Constitution is titled “Right to Freedom” and the word “freedom” along with
the word “any” before the word “occupation” in Article 19(1)(g) of the
Constitution would mean that the right to establish and administer an
educational institution will include the right of a citizen to establish a
school for imparting education in a medium of instruction of his choice.
If a citizen thinks that he should establish a school and in such a school,
the medium of instruction should be a particular language then he can
exercise such right subject to the reasonable regulations made by the State
under Article 19(6) of the Constitution. We are thus of the considered
opinion that a private unaided school which is not a minority school and
which does not enjoy the protection of Articles 29(1) and 30(1) of the
Constitution can choose a medium of instruction for imparting education to
the children in the school.
39. It is, however, well settled that all educational institutions can
be subject to regulations by the State for inter alia maintenance of
proper academic standards. While discussing the right to establish
and administer an educational institution under Article 19(1)(g) of
the Constitution, Kirpal C.J., speaking for the majority of Judges in
T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. (supra),
held:
“The right to establish an educational institution can be
regulated; but such regulatory measures must, in general, be to
ensure the maintenance of proper academic standards, atmosphere
and infrastructure (including qualified staff) and the
prevention of maladministration by those in charge of
management……”
Again, in the majority judgment in T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. (supra), Kirpal C.J. while discussing the right of a
minority educational institution protected under Article 30(1) of the
Constitution;
“……It was permissible for the authorities to prescribe
regulations, which must be complied with, before a minority
institution could seek or retain affiliation and recognition.
But it was also stated that the regulations made by the
authority should not impinge upon the minority character of the
institution. Therefore, a balance has to be kept between the
two objectives – that of ensuring the standard of excellence of
the institution, and that of preserving the right of the
minorities to establish and administer their educational
institutions......”
Thus, whether it is a private unaided institution enjoying the right under
Article 19(1)(g) of the Constitution or whether it is a private institution
enjoying the special protection of a minority institution under Article
30(1) of the Constitution, the State has the power to adopt regulatory
measures which must satisfy the test of reasonableness. Moreover, the
State may exercise this regulatory power either by making a law or by
issuing an executive order.
40. The learned Advocate General for the State of Karnataka relied on
the judgment of this Court in Gujarat University & Anr. v. Shri
Krishna Ranganath Mudholkar & Ors. (supra) to submit that this power
to prescribe regulations for maintaining the standards of education
would include the power to prescribe the medium of instruction. We
quote the relevant portion of the decision of the Constitution Bench
of this Court in Gujarat University & Anr. v. Shri Krishna Ranganath
Mudholkar & Ors. (supra) on which he has placed reliance:
“23.…..The power to legislate in respect of primary or secondary
education is exclusively vested in the States by item No.II of
List II, and power to legislate on medium of instruction in
institutions of primary or secondary education must therefore
rest with the State Legislatures. Power to legislate in respect
of medium of instruction is, however, not distinct legislative
head; it resides with the State Legislatures in which the power
to legislate on education is vested, unless it is taken away by
necessary intendment to the contrary. Under items 63 to 65 the
power to legislate in respect of medium of instruction having
regard to the width of those items, must be deemed to vest in
the Union. Power to legislate in respect of medium of
instruction, in so far it has a direct bearing and impact upon
the legislative head of co-ordination and determination of
standards in institutions of higher education or research and
scientific and technical institutions, must also be deemed by
item 66 List I to be vested in the Union.”
From the aforesaid quotation, we find that the Constitution Bench has held
that under the scheme of distribution of legislative powers between the
States and the Union, the power to legislate in respect of primary or
secondary education is exclusively vested in the States and has further
held that in exercise of this power the State can prescribe the medium of
instruction. The Constitution Bench, however, has not held that this power
of the State to prescribe the medium of instruction in primary or secondary
schools can be exercised in contravention of the rights guaranteed under
Article 19(1)(a) and 19(1)(g) of the Constitution. The Constitution Bench
has only held that if the medium of instruction has a direct bearing or
impact on the determination of standards in institutions of higher
education, the legislative power can be exercised by the Union to prescribe
a medium of instruction. For example, prescribing English as a medium of
instruction in subjects of higher education for which only English books
are available and which can only be properly taught in English may have a
direct bearing and impact on the determination of standards of education.
Prescribing the medium of instruction in schools to be mother tongue in the
primary school stage in classes I to IV has, however, no direct bearing and
impact on the determination of standards of education, and will affect the
fundamental rights under Articles 19(1)(a) and 19(1)(g) of the
Constitution.
41. We may now consider the decision of the Division Bench of this Court
in English Medium Students Parents Association v. State of Karnataka
& Ors. (supra) on which reliance has been placed by the State of
Karnataka. In paragraph 20 at page 560 of the aforesaid decision as
reported in the SCC, this Court has held that all educational experts
are uniformly of the opinion that pupils should begin their schooling
through the medium of their mother tongue and the reason for this
opinion is that if the tender minds of the children are subject to an
alien medium, the learning process becomes unnatural and inflicts a
cruel strain on the children which makes the entire learning process
mechanical, artificial and torturous but if the basic knowledge is
imparted through mother tongue, the young child will be able to
garner knowledge easily. In paragraph 17 at page 559 of the
aforesaid judgment, the Division Bench of this Court has also given
the reasons why it did not find the impugned Government order to be
ultra vires Articles 14, 29(1) and 30(1) of the Constitution. These
reasons are quoted hereinbelow:
“16. In view of the liberty given to the State of Karnataka the
present GO bearing No.87 PROU SE BHA 88, Bangalore dated June
19, 1989 (quoted above) has come to be passed. A corrigendum
also came to be issue on June 22, 1989 which reads as under:
“For para (i) of Order portion of the abovesaid Government
Order dated June 19, 1989 i.e., from the words ‘From Ist
standard …. subject to study’ the following para shall be
substituted:
‘From Ist 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.’ “
17. A careful reading of the above GO would clearly indicate
that the element of compulsion at the primary stage is no longer
there because the GO is unequivocal when it says from Ist to
IVth standards mother tongue will be the medium of instruction,
only one language from Appendix I will be compulsory subject of
study. From IIIrd standard onwards Kannada will be an option
subject for non-Kannada speaking students. It is to be taught
on voluntary basis there being no examination at the end of the
year in Kannada language……”
Thus, the reasons given by the Division Bench of this Court to uphold the
Government order of the State of Karnataka dated 19.06.1989 are that the
Government had issued a corrigendum on 22.06.1989 and a reading of the
Government order after the corrigendum would show that there was no element
of compulsion at the primary stage any longer that the medium of
instruction from I standard to IV standard would be in mother tongue. The
decision of this Court in English Medium Students Parents Association v.
State of Karnataka & Ors. (supra), is, therefore, not an authority for the
proposition that prescription of mother tongue in classes I to IV in the
primary school can be compelled by the State as a regulatory measure for
maintaining the standards of education.
42. We are of the considered opinion that though the experts may be
uniform in their opinion that children studying in classes I to IV in
the primary school can learn better if they are taught in their
mother tongue, the State cannot stipulate as a condition for
recognition that the medium of instruction for children studying in
classes I to IV in minority schools protected under Articles 29(1)
and 30(1) of the Constitution and in private unaided schools enjoying
the right to carry on any occupation under Article 19(1)(g) of the
Constitution would be the mother tongue of the children as such
stipulation. We accordingly answer question No.(iii) referred to us
and hold that the imposition of mother tongue affects the fundamental
rights under Articles 19, 29 and 30 of the Constitution.
43. Question No.(iv): Whether the Government recognized schools are
inclusive of both government-aided schools and private & unaided
schools?”
In Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra),
Jeevan Reddy J. writing the judgment for himself and for Pandian J. has
held in paragraph 204 at page 753 that the right to establish an
educational institution does not carry with it the right to recognition or
the right to affiliation and that recognition and affiliation are essential
for meaningful exercise of the right to establish and administer
educational institutions. In this judgment, the two Judges of this Court
have also held that recognition may be granted either by the Government or
by any other authority or body empowered to accord recognition and
affiliation may be granted by the academic body empowered to grant
affiliation. In this judgment, the two Judges of this Court have further
held that it is open to a person to establish an educational institution,
admit students, impart education, conduct examination and award
certificates but the educational institution has no right to insist that
the certificates or degrees awarded by such institution should be
recognized by the State and therefore the institution has to seek such
recognition or affiliation from the appropriate agency. In the aforesaid
case of Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors.
(supra), S. Mohan J. in his concurring judgment has also observed in
paragraph 76 at page 693 that recognition is for the purpose of conforming
to the standards laid down by the State and affiliation is with regard to
the syllabi and the courses of study and unless and until they are in
accordance with the prescription of the affiliating body, certificates
cannot be conferred and hence the educational institution is obliged to
follow the syllabi and the course of the study. These views expressed by
the three Judges in the Constitution Bench judgment of this Court in Unni
Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra) have not
been departed from in the majority judgment in T.M.A. Pai Foundation & Ors.
v. State of Karnataka & Ors. (supra). Kirpal C.J. writing the judgment in
T.M.A. Pai Foundation (supra) on behalf of the majority Judges has held
that the fundamental right to establish an educational institution cannot
be confused with the right to ask for recognition or affiliation. From the
aforesaid discussion of the law as developed by this Court, it is clear
that all schools, whether they are established by the Government or whether
they are aided by the Government or whether they are not aided by the
Government, require recognition to be granted in accordance of the
provisions of the appropriate Act or Government order. Accordingly,
Government recognized schools will not only include government aided
schools but also unaided schools which have been granted recognition.
44. Question No.(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 ?
We have extracted Article 350A of the Constitution above and we have
noticed that in this Article it is provided that it shall be the endeavour
of every State and of every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the primary
stage of education to children belonging to linguistic minority groups. We
have already held that a linguistic minority under Article 30(1) of the
Constitution has the right to choose the medium of instruction in which
education will be imparted in the primary stages of the school which it has
established. Article 350A therefore cannot be interpreted to empower the
State to compel a linguistic minority to choose its mother tongue only as a
medium of instruction in a primary school established by it in violation of
this fundamental right under Article 30(1). We accordingly hold that State
has no power under Article 350A of the Constitution to compel the
linguistic minorities to choose their mother tongue only as a medium of
instruction in primary schools.
45. In view of our answers to the questions referred to us, we dismiss
Civil Appeal Nos.5166-5190 of 2013, 5191-5199 of 2013, the Civil Appeal
arising out of S.L.P. (C) No.32858 of 2013 and Writ Petition (C) No.290 of
2009. There shall be no order as to costs.
.....……………..……………………CJI.
(R.M. Lodha)
.....……………..……………………….J.
(A. K. Patnaik)
.....……………..……………………….J.
(Sudhansu Jyoti Mukhopadhaya)
.....……………..……………………….J.
(Dipak Misra)
...…....………….……………………..J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
May 06, 2014.
The Government of Karnataka issued a Government Order dated
19.06.1989 prescribing that “from 1st standard to IVth standard, mother
tongue will be the medium of instruction”.
On 22.06.1989, the Government
of Karnataka issued a corrigendum substituting the aforesaid words in the
earlier Government Order dated 19.06.1989 by the following words:
“from 1st standard to IVth standard, where it is expected that
normally mother tongue will be the medium of instruction.”
The orders dated 19.06.1989 and 22.06.1989 were challenged before this
Court and a Division Bench of this Court in its judgment dated 08.12.1993
in English Medium Students Parents Association v. State of Karnataka & Ors.
[(1994) 1 SCC 550] held that the two orders of the Government of Karnataka
were constitutionally valid.
3. Thereafter, in cancellation of all earlier orders pertaining to the
subject, the Government of Karnataka issued a fresh order dated
29.04.1994 regarding the language policy to be followed in primary
and high schools with effect from the academic year 1994-1995.
Clauses 2 to 8 of the Government Order dated 29.04.1994, with which
we are concerned in this reference, are extracted hereinbelow:-
“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.
4. However, permission can be granted to the schools to continue
to teach in the pre-existing medium to the students of standards
2 to 4 during the academic year 94-95.
5. The students are permitted to change over to English or any
other language as medium at their choice, from 5th standard.
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.
7. The Government will consider regularization of the existing
unrecognized schools as per policy indicated in paragraphs 1 to 6
mentioned above. Request of schools who have complied with the
provisions of the code of education and present policy of the
government will be considered on the basis of the report of the
Zilla Panchayat routed through commissioner for public
instructions.
8. It is directed that all unauthorized schools which do not
comply with the above conditions, will be closed down.”
Thus, these clauses of the Government order dated 29.04.1994 provided that
medium of instruction should be mother tongue or Kannada with effect from
the academic year 1994-1995 in all Government recognized schools in classes
I to IV and the students can be permitted to change over to English or any
other language as medium of their choice from class V. The Government
Order dated 29.04.1994, however, clarified that permission can be granted
to only those students whose mother tongue is English, to study in English
medium in classes I to IV in existing recognized English medium schools.
=
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 ?
We have extracted Article 350A of the Constitution above and we have
noticed that in this Article it is provided that it shall be the endeavour
of every State and of every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the primary
stage of education to children belonging to linguistic minority groups.
We
have already held that a linguistic minority under Article 30(1) of the
Constitution has the right to choose the medium of instruction in which
education will be imparted in the primary stages of the school which it has
established.
Article 350A therefore cannot be interpreted to empower the
State to compel a linguistic minority to choose its mother tongue only as a
medium of instruction in a primary school established by it in violation of
this fundamental right under Article 30(1).
We accordingly hold that State
has no power under Article 350A of the Constitution to compel the
linguistic minorities to choose their mother tongue only as a medium of
instruction in primary schools.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41504
R.M. LODHA, A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, DIPAK MISRA, FAKKIR MOHAMED IBRAHIM KALIFULLA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.5166-5190 OF 2013
State of Karnataka & Anr. … Appellants
Versus
Associated Management of (Government
Recognised – Unaided – English Medium)
Primary & Secondary Schools & Ors. … Respondents
WITH
WRIT PETITION (C) No.290 of 2009
Nallur Prasad & Ors. … Appellants
Versus
State of Karnataka & Ors. … Respondents
CIVIL APPEAL Nos.5191-5199 OF 2013
R.G. Nadadur & Ors. … Appellants
Versus
Shubodaya Vidya Samasthe & Anr. … Respondents
AND
CIVIL APPEAL No. 5090 OF 2014
(Arising out of S.L.P. (C) No.32858 of 2013)
State of Karnataka & Ors. … Appellants
Versus
Mohamed Hussain Jucka … Respondent
J U D G M E N T
A. K. PATNAIK, J.
Leave granted in S.L.P. (C) No.32858 of 2013.
Facts leading to the reference to the Constitution Bench:
2. The Government of Karnataka issued a Government Order dated
19.06.1989 prescribing that “from 1st standard to IVth standard, mother
tongue will be the medium of instruction”. On 22.06.1989, the Government
of Karnataka issued a corrigendum substituting the aforesaid words in the
earlier Government Order dated 19.06.1989 by the following words:
“from 1st standard to IVth standard, where it is expected that
normally mother tongue will be the medium of instruction.”
The orders dated 19.06.1989 and 22.06.1989 were challenged before this
Court and a Division Bench of this Court in its judgment dated 08.12.1993
in English Medium Students Parents Association v. State of Karnataka & Ors.
[(1994) 1 SCC 550] held that the two orders of the Government of Karnataka
were constitutionally valid.
3. Thereafter, in cancellation of all earlier orders pertaining to the
subject, the Government of Karnataka issued a fresh order dated
29.04.1994 regarding the language policy to be followed in primary
and high schools with effect from the academic year 1994-1995.
Clauses 2 to 8 of the Government Order dated 29.04.1994, with which
we are concerned in this reference, are extracted hereinbelow:-
“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.
4. However, permission can be granted to the schools to continue
to teach in the pre-existing medium to the students of standards
2 to 4 during the academic year 94-95.
5. The students are permitted to change over to English or any
other language as medium at their choice, from 5th standard.
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.
7. The Government will consider regularization of the existing
unrecognized schools as per policy indicated in paragraphs 1 to 6
mentioned above. Request of schools who have complied with the
provisions of the code of education and present policy of the
government will be considered on the basis of the report of the
Zilla Panchayat routed through commissioner for public
instructions.
8. It is directed that all unauthorized schools which do not
comply with the above conditions, will be closed down.”
Thus, these clauses of the Government order dated 29.04.1994 provided that
medium of instruction should be mother tongue or Kannada with effect from
the academic year 1994-1995 in all Government recognized schools in classes
I to IV and the students can be permitted to change over to English or any
other language as medium of their choice from class V. The Government
Order dated 29.04.1994, however, clarified that permission can be granted
to only those students whose mother tongue is English, to study in English
medium in classes I to IV in existing recognized English medium schools.
4. Aggrieved by the clauses of the Government Order dated 29.04.1994
which prescribed that the medium of instruction in classes I to IV in
all Government recognized schools will be mother tongue or Kannada
only, the Associated Management of Primary and Secondary Schools in
Karnataka filed Writ Petition No.14363 of 1994 and contended inter
alia that the right to choose the medium of instruction in classes I
to IV of a school is a fundamental right under Articles 19(1)(a),
19(1)(g), 26, 29 and 30(1) of the Constitution and that the impugned
clauses of the order dated 29.04.1994 of the Government of Karnataka
are ultra vires the Constitution. The State of Karnataka and its
officers, on the other hand, relied on the decision of the Division
Bench of this Court in English Medium Students Parents Association v.
State of Karnataka & Ors. (supra) and contended that the State in
exercise of its power to regulate primary education can, as a matter
of policy, prescribe that the medium of instruction in classes I to
IV would be in mother tongue of the child or Kannada. The State of
Karnataka also contended that Article 350A of the Constitution casts
a duty on the State to provided adequate facilities for instruction
in the mother tongue at the primary stage of education to children
belonging to linguistic minority groups and the Government of
Karnataka, after considering a report of experts in the field of
education, has prescribed in the Government Order dated 29.04.1994
that medium of instruction for children studying in classes I to IV
shall be in the mother tongue of the child.
5. A Full Bench of the Karnataka High Court heard the writ petition and
all other connected writ petitions and in its common judgment dated
02.07.2008, held:
“(1) Right to education is a fundamental right being a species of
right to life flowing from Article 21 of the Constitution. By
virtue of Article 21-A right to free and compulsory primary
education is a fundamental right guaranteed to all children of the
age of six to fourteen years. The right to choose a medium of
instruction is implicit in the right to education. It is a
fundamental right of the parent and the child to choose the medium
of instruction even in primary schools.
(2) Right to freedom of speech and expression includes the right to
choose a medium of instruction.
(3) Imparting education is an occupation and, therefore, the right
to carry on any occupation under Article 19(1)(g) includes the
right to establish and administer an educational institution of
one's choice. 'One's choice' includes the choice of medium of
instruction.
(4) Under Article 26 of the Constitution of India every religious
denomination has a right to establish and maintain an institution
for charitable purposes which includes an educational institution.
This is a right available to majority and minority religious
denominations.
(5) Every section of the society which has a distinct language
script or culture of its own has the fundamental right to conserve
the same. This is a right which is conferred on both majority and
minority, under Article 29(1) of the Constitution.
(6) All minorities, religious or linguistic, have a right to
establish and administer educational institutions of their choice
under Article 30(1) of the Constitution.
(7) Thus, every citizen, every religious denomination, and every
linguistic and religious minority, have a right to establish,
administer and maintain an educational institution of his/its
choice under Articles 19(1)(g), 26 and 30(1) of the Constitution
of India, which includes the right to choose the medium of
instruction.
(8) No citizen shall be denied admission to an educational
institution only on the ground of language as stated in Article
29(2) of the Constitution of India.
(9) The Government policy in introducing Kannada as first language
to the children whose mother tongue is Kannada is valid. The policy
that all children, whose mother tongue is not Kannada, the official
language of the State, shall study Kannada language as one of the
subjects is also valid. The Government policy to have mother tongue
or regional language as the medium of instruction at the primary
level is valid and legal, in the case of schools run or aided by
the State.
(10) But, the Government policy compelling children studying in
other Government recognized schools to have primary education only
in the mother tongue or the regional language is violative of
Article 19(1) (g), 26 and 30(1) of the Constitution of India.”
The High Court accordingly allowed the writ petitions and quashed clauses
2, 3, 6 and 8 of the Government order dated 29.04.1994 in their application
to schools other than schools run or aided by the Government but upheld
rest of the Government order dated 29.04.1994.
6. Aggrieved by the judgment dated 02.07.2008 of the Full Bench of the
High Court, the State of Karnataka and the Commissioner of Public
Instruction, Bangalore, have filed Civil Appeal Nos.5166-5190 of
2013. Fifteen educationists claiming to be keen that primary
education in the State of Karnataka from I to IV standard should be
in the mother tongue of the child or Kannada have also filed Writ
Petition (C) No.290 of 2009 for declaring that the Government Order
dated 29.04.1994 is constitutionally valid in respect of unaided
Government recognised primary schools and for a writ of mandamus
directing the State Government to implement the Government Order
dated 29.04.1994.
7. As the judgment dated 02.07.2008 of the Full Bench of the High Court
was not implemented for more than a year, a Division Bench of the
High Court passed an order dated 03.07.2009 in Writ Appeal No.1682 of
2009 and other connected matters asking the Government of Karnataka
to comply with the judgment dated 02.07.2008 of the Full Bench of the
High Court and aggrieved by the said order dated 03.07.2009 in Writ
Appeal No.1682 of 2009, different officers of the Education
Department of the Government of Karnataka have filed Civil Appeal
Nos.5191-5199 of 2013.
8. A learned Single Judge of the Karnataka High Court directed the State
of Karnataka in Writ Petition No.3044 of 1994 to grant permission to
an institution to run English medium school from 1st standard to 4th
standard by order dated 22.01.1996. The order of the learned Single
Judge was challenged before the Division Bench of the High Court in
Writ Appeal No.2740 of 1997, but on 21.02.2012 the Division Bench of
the High Court dismissed the writ appeal saying that the order dated
08.07.2008 of the Full Bench of the High Court in Associated
Management of Primary and Secondary Schools in Karnataka v. The State
of Karnataka & Ors. has not been stayed by this Court in the Special
Leave Petition under Article 136 of the Constitution. Aggrieved by
the order dated 21.02.2012 passed by the Division Bench in Writ
Appeal No.2740 of 1997, the State of Karnataka has filed Special
Leave Petition (C) No.32858 of 2013.
The questions referred to the Constitution Bench:
9. All these matters were heard by a Division Bench of this Court and on
05.07.2013, the Division Bench passed an order referring the
following questions for consideration by the Constitution Bench:
“(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 affect 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?”
In its order dated 05.07.2013, the Division Bench also observed that the
Constitution Bench may take into consideration ancillary or incidental
questions which may arise during the course of hearing of the cases and
further directed that all other connected matters including
petitions/applications shall be placed before the Constitution Bench.
Contentions of learned counsel for the State of Karnataka:
10. At the hearing before the Constitution Bench, Professor Ravi Varma
Kumar, the learned Advocate General for the State of Karnataka,
submitted that the State Reorganization Commission, 1955 in
paragraphs 773 to 777 of its report has referred to the resolution
adopted at the Provincial Education Ministers’ Conference held in
August, 1949 that the medium of instruction and examination in the
junior basic stage must be the mother tongue of the child and that
the mother tongue of the child will be the language declared by the
parent or guardian to be the mother tongue. He submitted that this
resolution adopted at the Provincial Education Ministers’ Conference
held in August, 1949, has been approved by the Government of India
and now serves as a guide for the State Governments in making
arrangements for the education of the school-going children in the
respective States. He submitted that after the report of the State
Reorganization Commission, 1955, Article 350A has been introduced in
the Constitution providing that it shall be the endeavour of every
State and of every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the
primary stage of education to children belonging to a linguistic
minority group.
11. The learned Advocate General submitted that, in this background, the
Government order dated 29.04.1994 was issued by the Government of
Karnataka prescribing that the medium of instruction for children
studying in classes I to IV in all primary schools recognized by the
Government will be mother tongue or Kannada from the academic year
1994-95. He cited the judgment of the Division Bench of this Court
in English Medium Students Parents Association v. State of Karnataka
& Ors. (supra) to submit that experts are unanimous in their view
that the basic knowledge can easily be acquired by a child through
his mother tongue and that the State Government has the power to lay
down a policy prescribing that the medium of instruction for children
studying in I to IV standards in all Government recognized schools in
Karnataka will be Kannada or mother tongue.
12. The learned Advocate General next submitted that the High Court was
not right in coming to the conclusion that the right to freedom of
speech and expression guaranteed under Article 19(1)(a) of the
Constitution includes the right to choose a medium of instruction and
that in exercise of this right, it is a fundamental right of the
parents and the child to choose a medium of instruction in the
primary schools. He submitted that similarly the High Court was not
right in coming to the conclusion that the right to establish and
administer an educational institution under Articles 19(1)(g) and 26
of the Constitution will include the right to choose a medium of
instruction. He submitted that in any case if the State takes a
policy decision that the medium of instruction for the children
studying in classes I to IV will be their mother tongue, such a
policy decision of the State Government will be within the regulatory
powers of the State. He cited the judgment of this Court in Gujarat
University & Anr. v. Shri Krishna Ranganath Mudholkar & Ors. [AIR
1963 SC 703] in which a Constitution Bench of this Court has taken
the view that the State Legislature has the regulatory power to
legislate on medium of instruction in institutions of primary or
secondary education. He submitted that under Article 162 of the
Constitution, the State Government has executive powers co-extensive
with its legislative powers and therefore the Government order dated
29.04.1994 prescribing that the medium of instruction of all children
studying in classes I to IV will be mother tongue was well within the
powers of the State Government. He argued that even if it is held
that children and parents have a right to choose a medium of
instruction for classes I to IV or that citizens who have established
schools have a fundamental right under Article 19(1)(g) of the
Constitution to choose the medium in which education will be imparted
to the children studying in their schools, the State could restrict
their right by virtue of its regulatory powers and prescribe that a
medium of instruction for children studying in classes I to IV will
be their mother tongue.
13. The learned Advocate General next submitted that the High Court was
again not right in coming to the conclusion that the Government
policy compelling children studying in schools recognized by the
Government to have primary education only in mother tongue or the
regional language is violative of Article 30(1) of the Constitution.
He submitted that so long as the State permits a medium of
instruction to be the same as the language of the minority community
which has established the educational institution, the fundamental
rights under Article 29(1) and 30(1) of the Constitution are not
violated because the purport of Articles 29(1) and 30(1) of the
Constitution is to promote the language of every community including
the language of a linguistic minority. He cited State of Bombay v.
Bombay Education Society & Ors. [AIR 1954 SC 561] wherein a
Constitution Bench of this Court has held that a minority group such
as the Anglo-Indian community, which is based, inter alia, on
religion and language, has the fundamental right to conserve its
language, script and culture under Article 29(1) and has the right to
establish and administer educational institutions of its choice under
Article 30(1) and, therefore, there must be implicit in such
fundamental right, the right to impart education in its own
institution to the children of its own community in its own language.
He also cited D.A.V. College, etc. etc. v. State of Punjab & Ors.
[(1971) 2 SCC 269] wherein a Constitution Bench of this Court has
held that the purpose and object of linguistic States is to provide
greater facility for the development of the people of that area
educationally, socially and culturally in the language of that region
but while the State or the University has every right to provide for
the education of the majority in the regional medium, it is subject
to the restrictions contained in Articles 25 to 30 of the
Constitution and accordingly neither the University nor the State
could impart education in a medium of instruction in a language and
script which stifles the language and script of any section of the
citizens. According to him, the rights under Articles 29(1) and
30(1) of the Constitution are thus not affected by the order dated
29.04.1994 of the Government of Karnataka because it prescribes that
the students in classes I to IV will be imparted education in the
medium of instruction of the mother tongue of the children and the
mother tongue of the children will be none other than the language of
their linguistic community.
14. The learned Advocate General further submitted that this Court has
held in Usha Mehta & Ors. v. State of Maharashtra & Ors. [(2004) 6
SCC 264] that the State can impose reasonable regulations for
protecting the larger interests of the State and the nation even in
the case of minority educational institutions enjoying the right
under Article 30(1) of the Constitution and the “choice” that could
be exercised by the minority community in establishing educational
institutions is subject to such reasonable regulations imposed by the
State, but while imposing regulations, the State shall be cautious
not to destroy the minority character of institutions. He argued
that the Government Order dated 29.04.1994 by providing that the
medium of instruction of children studying in classes I to IV in
primary schools will be the mother tongue of the children does not in
any way destroy the minority character of the institutions protected
under Article 30(1) of the Constitution.
15. The learned Advocate General submitted that the High Court has relied
on the judgment of this Court in T.M.A. Pai Foundation & Ors. v.
State of Karnataka & Ors. [(2002) 8 SCC 481] in coming to the
conclusion that the Government order dated 29.04.1994 violates the
fundamental rights under Articles 19(1)(g) and 30(1) of the
Constitution. He submitted that the High Court has not noticed some
of the paragraphs of the majority judgment in T.M.A. Pai Foundation &
Ors. v. State of Karnataka & Ors. (supra) in coming to its
conclusions. He referred to the paragraph 54 of the aforesaid
majority judgment in which it has been held that the right to
establish and maintain institutions for religious and charitable
purposes under Articles 19(1)(g) and 26(a) of the Constitution is
subject to regulations made by the State for maintaining educational
standards etc. He referred to paragraph 115 of the majority judgment
in which it has also been held that the right of the religious and
linguistic minorities to establish and administer educational
institutions of their choice is not absolute and that such
institutions have to follow statutory measures regulating educational
standards etc. He submitted that in paragraph 122 of the majority
judgment in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.
(supra), however, it has been held that such regulations must satisfy
the test of reasonableness. He submitted that the Government Order
dated 29.04.1994 prescribing that the medium of instruction for all
children studying in classes I to IV in primary schools in the State
of Karnataka would be the mother tongue of the children is a
regulatory measure and satisfies the test of reasonableness.
16. The learned Advocate General finally submitted that Article 21A of
the Constitution is titled ‘Right to Education’ and provides that the
State shall provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State may, by
law, determine. He argued that Article 21A is thus the sole
depository of the right to education and it is not open for any
citizen to invoke any other fundamental right like Article 19(1)(a)
or Article 21 to contend that he has a right to be educated in a
medium of instruction of his choice. He submitted that Parliament
has made the Right of Children to Free and Compulsory Education Act,
2009 under Article 21A of the Constitution, and Section 29(2)(f) of
this Act provides that the medium of instruction shall, as far as
practicable, be the child’s mother tongue. He submitted that the
High Court was, therefore, not right in coming to the conclusion that
the right to choose a medium of instruction is implicit in the right
to education under Articles 21 and 21A of the Constitution.
Contentions on behalf of the respondents who support the Government order
dated 29.04.1994:
17. Mr. K. N. Bhat, learned senior counsel appearing for respondent nos.
2, 5, 6, 7, 9, 10, 11, 15, 17 and 18 in Civil Appeal No.5166 of 2013,
submitted that mother tongue is the language in which the child is
the most comfortable. He cited Usha Mehta & Ors. v. State of
Maharashtra & Ors. (supra) in which a three-Judge Bench of this Court
clearly held that the State can impose reasonable regulations in the
larger interests of the State and the nation even on institutions
established by religious and linguistic minorities and protected
under Article 30(1) of the Constitution and that the word ‘choice’ in
Article 30 of the Constitution is subject to such regulation imposed
by the State. He submitted that the only caution that the State has
to exercise is that by imposing such regulations the minority
character of the institutions is not destroyed. He submitted that
accordingly if the State Government has issued the order dated
29.04.1994 under Article 162 of the Constitution prescribing that the
medium of instruction for all children studying in classes I to IV
would be mother tongue, such an order being regulatory in nature and
not affecting the minority character of the institutions, does not in
any way affect the right guaranteed under Article 30(1) of the
Constitution. He submitted that the conclusion of the High Court
that the Government Order dated 29.04.1994 insofar as it compels
minority institutions to adopt medium of instruction for students
studying in classes I to IV as mother tongue is violative of right
under Article 30 of the Constitution, therefore, is not correct.
18. Mr. Bhat next submitted that Article 19(1)(a) of the Constitution
guarantees the right to freedom of speech and expression to all
citizens and the only restrictions that the State can impose on this
right are those mentioned in Article 19(2) of the Constitution. He
submitted that a reading of Article 19(2) of the Constitution will
show that it empowers the State to make law imposing reasonable
restrictions in the interest of the sovereignty and integrity of
India, the security of the State, friendly relation with foreign
States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence, but does not
empower the State to impose reasonable restrictions in the interest
of general public. He vehemently argued that if the right to freedom
of speech and expression is interpreted so as to include the right to
choose the medium of instruction, the State will have no power to
impose any reasonable restrictions in the larger interests of the
State or the nation on this right to choose the medium of instruction
and such an interpretation should be avoided by the Court. He
submitted that the rationale of the right to freedom of speech and
expression in Article 19(1)(a) of the Constitution and the power of
the State to impose reasonable restrictions under Article 19(2) of
the Constitution in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign
States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence, have been explained
in the judgments of P.B. Sawant, J. and B.P. Jeevan Reddy, J. in
Secretary, Ministry of Information & Broadcasting, Government of
India & Ors. v. Cricket Association of Bengal & Ors. [(1995) 2 SCC
161]. He submitted that considering these serious consequences which
may arise if we take the view that the right to freedom of speech and
expression includes the right to choose medium of instruction, we
should leave this question open if it is not necessary to decide it
in this case.
Contentions on behalf of the respondents who challenge the Government order
dated 29.04.1994:
19. Mr. Mohan V. Katarki, learned counsel appearing for respondent no.1
in Civil Appeal No.5166 of 2013, submitted that under Article 350A of
the Constitution, the State has no power to compel any educational
institution to adopt mother tongue as the medium of instruction. He
submitted that Article 350A of the Constitution only casts a duty on
every State and every local authority within the State to provide
adequate facilities for instruction in the mother- tongue at the
primary stage of education to children belonging to linguistic
minority groups, and does not empower the State to interfere with
right to freedom of speech and expression and the right to establish
and administer schools under Article 19 of the Constitution.
20. Mr. Katarki submitted that the reliance placed by the State on the
decision of this Court in English Medium Students Parents Association
v. State of Karnataka & Ors. (supra) in which the earlier Government
Order dated 22.06.1989 prescribing mother tongue as the medium of
instruction was upheld is misplaced as the reason given by this Court
in the aforesaid decision for upholding the order dated 22.06.1989 of
the State Government is that the order did not have an element of
compulsion. He submitted that the Government order dated 29.04.1994,
on the other hand, makes it compulsory for all Government recognized
schools including private unaided schools to adopt mother tongue of
the child as the medium of instruction in classes I to IV.
21. Mr. Katarki submitted that this Court has held in Unni Krishnan,
J.P. & Ors. v. State of Andhra Pradesh & Ors. [(1993) 1 SCC 645] that
the right to education of a child up to the age of 14 years is part
of the right to life under Article 21 of the Constitution and,
therefore, the High Court was right in coming to the conclusion that
the right to be educated in the medium of instruction of the choice
of the child is also part of the right under Article 21 of the
Constitution. He submitted that similarly the right to freedom of
speech and expression will include the right to choose the medium of
instruction in which the child is to be educated and the High Court
was, therefore, right in coming to the conclusion that compelling a
child to be educated through a particular medium of instruction, such
as his mother tongue, is violative of his right under Article
19(1)(a) of the Constitution.
22. Mr. Katarki next submitted that Article 30(1) of the Constitution
confers on religious and linguistic minority communities the right to
establish and administer educational institutions of their choice and
the word “choice” clearly indicates that the State cannot compel an
institution established by a religious or linguistic minority to
impart education in their institution to the children of classes I to
IV only in the mother tongue of the children. In support of this
submission, he relied on the decisions of this Court in In re The
Kerala Education Bill, 1957 [1959 SCR 995], Rev. Father W. Proost &
Ors. v. The State of Bihar & Ors. [1969 (2) SCR 73], D.A.V. College,
etc. etc. v. State of Punjab & Ors. (supra), D.A.V. College,
Bhatinda, etc. v. The State of Punjab & Ors. (supra) and The
Ahmedabad St. Xavier’s College Society & Anr. v. State of Gujarat &
Anr. [(1974) 1 SCC 717]. He submitted that even the educational
institutions which have not been established by a religious or
linguistic minority have a right to freedom under Articles 19(1)(g)
and 26 of the Constitution and in exercise of this right, they have a
right to choose the medium of instruction in which they want to
impart education to their students. In support of this proposition,
he relied on the majority judgment in T.M.A. Pai Foundation & Ors. v.
State of Karnataka & Ors. (supra) and P.A. Inamdar & Ors. v. State of
Maharashtra & Ors. [(2005) 6 SCC 537].
23. Mr. G.R. Mohan, appearing for respondent Nos.10 and 11 in Civil
Appeal No.5186 of 2013, while adopting the aforesaid submissions of
Mr. Katarki, further submitted that Article 26(3) of the Universal
Declaration of Human Rights adopted by the members of the United
Nations including India provides that parents have a prior right to
choose the kind of education that shall be given to their children.
Mr. K.V. Dhananjay, learned counsel appearing for some of the
respondents, also adopted the submissions of Mr. Katarki.
Our answers to the five questions referred to us:
24. Question No.(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?”.
As this question is referred to us in context of our Constitution, we have
to answer this question by interpreting the expression “mother tongue” as
used in the Constitution. We must not forget that the Constitution is not
just an ordinary Act which the court has to interpret for the purpose of
declaring the law, but is a mechanism under which the laws are to be made.
As Kania C.J. observed in A.K. Gopalan v. State of Madras (AIR 1950 SC 27):
“Although we are to interpret words of the Constitution on the
same principles of interpretation as we apply to any ordinary
law, these very principles of interpretation compel us to take
into account the nature and scope of the Act that we are
interpreting – to remember that it is a Constitution, a
mechanism under which laws are to be made and not a mere Act
which declares what the law is to be.”
The only provision in the Constitution which contains the expression
“mother tongue” is Article 350A. We must therefore understand why Article
350A was inserted in the Constitution. The State Reorganization
Commission, 1955, made recommendations for reorganizing the States on
linguistic basis. In Part IV of its report, the State Reorganization
Commission, 1955, has devoted Chapter I to “safeguards for linguistic
groups” and has recommended that the linguistic minorities of the States
should have the right to instruction in mother tongue. In support of this
recommendation, the State Reorganization Commission, 1955, has relied on
the resolution adopted at the Provincial Education Ministers’ Conference
held in August, 1949, which had been approved by the Government of India
and which had served as a guide to the State Governments in making
arrangements for the education of the school-going children whose mother
tongue is different from the regional language. This resolution is
extracted hereinbelow:
“The medium of instruction and examination in the junior basic
stage must be the mother tongue of the child and, where the
mother tongue is different from the regional or State language,
arrangements must be made for instruction in the mother tongue
by appointing at least one teacher, provided there are not less
than 40 pupils speaking the language in the whole school or 10
such pupils in a class. The mother tongue will be the language
declared by the parent or guardian to be the mother tongue. The
regional or State language, where it is different from the
mother tongue, should be introduced not earlier than Class III
and not later than the end of the junior basic stage. In order
to facilitate the switching-over to the regional language as
medium in the secondary stage, children should be given the
option of answering questions in their mother tongue, for the
first two years after the junior basic stage.”
From the aforesaid resolution adopted at the Provincial Education
Ministers’ Conference held in August, 1949, and from the recommendations of
the State Reorganization Commission, 1955, it is clear that while
recommending language as the basis for reorganization of the States in
India, the Commission wanted to ensure that the children of the linguistic
minority which had a language different from the language of the State were
imparted education at the primary stage in their mother tongue. In the
resolution adopted at the Provincial Education Ministers’ Conference held
in August, 1949, extracted above, it was also clarified that the mother
tongue will be the language declared by the parent or guardian to be the
mother tongue.
25. After the recommendations of the State Reorganization Commission,
1955, Article 350A was inserted in the Constitution by the
Constitution (VIIth Amendment) Act. Article 350A reads:
“It shall be the endeavour of every State and of every local
authority within the State to provide adequate facilities for
instruction in the mother tongue at the primary stage of
education to children belonging to linguistic minority groups;
and the President may issue such directions to any State as he
considers necessary or proper for securing the provision of such
facilities.”
A mere reading of Article 350A of the Constitution would show that it casts
a duty on every State and every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the primary
stage of education to children belonging to linguistic minority groups.
Hence, the expression ‘mother tongue’ in Article 350A means the mother
tongue of the linguistic minority group in a particular State and this
would obviously mean the language of that particular linguistic minority
group.
26. Mother tongue in the context of the Constitution would, therefore,
mean the language of the linguistic minority in a State and it is the
parent or the guardian of the child who will decide what the mother
tongue of child is. The Constitution nowhere provides that mother
tongue is the language which the child is comfortable with, and while
this meaning of “mother tongue” may be a possible meaning of the
‘expression’, this is not the meaning of mother tongue in Article
350A of the Constitution or in any other provision of the
Constitution and hence we cannot either expand the power of the State
or restrict a fundamental right by saying that mother tongue is the
language which the child is comfortable with. We accordingly answer
question no.(i).
27. Question No.(ii): Whether a student or a parent or a citizen has a
right to choose a medium of instruction at primary stage ?
The High Court has held that the parent or a child has a right to choose
medium of instruction in primary schools as part of the right to freedom of
speech and expression under Article 19(1)(a) of the Constitution and the
right to choose the medium of instruction is also implicit in the right to
education under Articles 21 and 21A of the Constitution. We have to decide
whether these conclusions of the High Court that the parent or a child has
a right to choose the medium of instruction in primary schools as part of
the right to freedom of speech and expression under Article 19(1)(a) of the
Constitution and also has a right to choose the medium of instruction in
primary schools under Articles 21 and 21A of the Constitution are correct.
28. Article 19 of the Constitution is titled “Right to Freedom” and it
states that all citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) x x x
(g) to practise any profession, or to carry on any occupation,
trade or business.
The word ‘freedom’ in Article 19 of the Constitution means absence of
control by the State and Article 19(1) provides that the State will not
impose controls on the citizen in the matters mentioned in sub-clauses
(a),(b),(c),(d),(e) and (g) of Article 19(1) except those specified in
clauses 2 to 6 of Articles 19 of the Constitution. In all matters
specified in clause (1) of Article 19, the citizen has therefore the
liberty to choose, subject only to restrictions in clauses (2) to (6) of
Article 19.
29. One of the reasons for giving this liberty to the citizens is
contained in the famous essay ‘On Liberty’ by John Stuart Mill. He
writes:
“Secondly, the principle requires liberty of tastes and pursuits;
of framing the plan of our life to suit our own character; of doing
as we like, subject to such consequences as may follow: without
impediment from our fellow creatures, so long as what we do does
not harm them, even though they should think our conduct foolish,
perverse, or wrong.”
According to Mill, therefore, each individual must in certain matters be
left alone to frame the plan of his life to suit his own character and to
do as he likes without any impediment and even if he decides to act
foolishly in such matters, society or on its behalf the State should not
interfere with the choice of the individual. Harold J. Laski, who was not
prepared to accept Mill’s attempts to define the limits of State
interference, was also of the opinion that in some matters the individual
must have the freedom of choice. To quote a passage from “A Grammar of
Politics” by Harold J. Laski:
“My freedoms are avenues of choice through which I may, as I deem
fit, construct for myself my own course of conduct. And the
freedoms I must possess to enjoy a general liberty are those which,
in their sum, will constitute the path through which my best self
is capable of attainment. That is not to say it will be attained.
It is to say only that I alone can make that best self, and that
without those freedoms I have not the means of manufacture at my
disposal.”
Freedom or choice in the matter of speech and expression is absolutely
necessary for an individual to develop his personality in his own way and
this is one reason, if not the only reason, why under Article 19(1)(a) of
the Constitution every citizen has been guaranteed the right to freedom of
speech and expression.
30. This Court has from time to time expanded the scope of the right to
freedom of speech and expression guaranteed under Article 19(1)(a) of
the Constitution by consistently adopting a very liberal
interpretation. In Romesh Thappar v. The State of Madras [AIR 1950
SC 124], this Court held that freedom of speech and expression
includes freedom of propagation of ideas which is ensured by freedom
of circulation and in Sakal Papers (P) Ltd. v. Union of India [AIR
1962 SC 305], this Court held that freedom of speech and expression
carries with it the right to publish and circulate one’s ideas,
opinions and views. In Bennett Coleman & Co. v. Union of India
[(1972)2 SCC 788], this Court also held that the freedom of press
means right of citizens to speak, publish and express their views as
well as right of people to read and in Odyssey Communications (P)
Ltd. v. Lokvidayan Sanghatana [(1988) 3 SCC 410], this Court has
further held that freedom of speech and expression includes the right
of citizens to exhibit films on Doordarshan.
31. This Court also went into the question whether receiving information
or education by a citizen was part of his right to freedom of speech
and expression in Secretary, Ministry of Information & Broadcasting,
Government of India & Ors. v. Cricket Association of Bengal & Ors.
(supra) and held that the right to freedom of speech and expression
in Article 19(1(a) of the Constitution will not only include the
right to impart information but also the right to receive
information. In his opinion, P.B. Sawant, J. observed that the right
to freedom of speech and expression also includes the right to
educate, to inform and to entertain and also the right to be
educated, informed and entertained. In line with the earlier
decisions of this Court, we are of the view that the right to freedom
of speech and expression under Article 19(1)(a) of the Constitution
includes the freedom of a child to be educated at the primary stage
of school in a language of the choice of the child and the State
cannot impose controls on such choice just because it thinks that it
will be more beneficial for the child if he is taught in the primary
stage of school in his mother tongue. We, therefore, hold that a
child or on his behalf his parent or guardian, has a right to freedom
of choice with regard to the medium of instruction in which he would
like to be educated at the primary stage in school. We cannot accept
the submission of the learned Advocate General that the right to
freedom of speech and expression in Article 19(1)(a) of the
Constitution does not include the right of a child or on his behalf
his parent or guardian, to choose the medium of instruction at the
stage of primary school.
32. We cannot also accept the submission of Mr. Bhat that if the right to
freedom of speech and expression in Article 19(1)(a) of the
Constitution is held to include the right to choose the medium of
instruction at the stage of primary school, then the State will have
no power under clause (2) of Article 19 to put reasonable
restrictions on the right to freedom of speech and expression except
in the interest of sovereignty and integrity of India, the security
of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation
or incitement to an offence. In our view, the Constitution makers
did not intend to empower the State to impose reasonable restrictions
on the valuable right to freedom of speech and expression of a
citizen except for the purposes mentioned in clause (2) of Article 19
of the Constitution because they thought that imposing other
restrictions on the freedom of speech and expression will be harmful
to the development of the personality of the individual citizen and
will not be in the larger interest of the nation. In the words of
Pantanjali Shastri speaking for the majority of the judges in Romesh
Thappar v. The State of Madras (supra):
“Thus, very narrow and stringent limits have been set to
permissible legislative abridgment of the right of free speech
and expression and this was doubtless due to the realisation
that freedom of speech and of the press lay at the foundation of
all democratic organisations, for without free political
discussion no public education, so essential for the proper
functioning of the processes of popular Government, is possible.
A freedom of such amplitude might involve risks of abuse. But
the framers of the Constitution may well have reflected with
Madison who was ‘the leading spirit in the preparation of the
First Amendment of the Federal Constitution’, that “it is better
leave a few of its noxious branches to their luxuriant growth
than, by pruning them away, to injure the vigour of those
yielding the proper fruits” (Quoted in Near v. Minnesotta, 283
U.S. 607 at 717-8).”
Therefore, once we come to the conclusion that the freedom of speech and
expression will include the right of a child to be educated in the medium
of instruction of his choice, the only permissible limits of this right
will be those covered under clause (2) of Article 19 of the Constitution
and we cannot exclude such right of a child from the right to freedom of
speech and expression only for the reason that the State will have no power
to impose reasonable restrictions on this right of the child for purposes
other than those mentioned in Article 19(2) of the Constitution.
33. We may now consider whether the view taken by the High Court in the
impugned judgment that the right to choose a medium of instruction is
implicit in the right to education under Articles 21 and 21A of the
Constitution is correct. Article 21 of the Constitution provides
that no person shall be deprived of his life or personal liberty
except according to procedure established by law. In Unni Krishnan,
J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra), a Constitution
Bench of this Court has held that under Article 21 of the
Constitution every child/citizen of this country has a right to free
education until he completes the age of 14 years. Article 21A of the
Constitution provides that the State shall provide free and
compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine. Under
Articles 21 and 21A of the Constitution, therefore, a child has a
fundamental right to claim from the State free education upto the age
of 14 years. The language of Article 21A of the Constitution further
makes it clear that such free education which a child can claim from
the State will be in a manner as the State may, by law, determine.
If, therefore, the State determines by law that in schools where free
education is provided under Article 21A of the Constitution, the
medium of instruction would be in the mother tongue or in any
language, the child cannot claim as of right under Article 21 or
Article 21A of the Constitution that he has a right to choose the
medium of instruction in which the education should be imparted to
him by the State. The High Court, in our considered opinion, was not
right in coming to the conclusion that the right to choose a medium
of instruction is implicit in the right to education under Articles
21 and 21A of the Constitution. Our answer to Question No.(ii),
therefore, is that a child, and on his behalf his parent or guardian,
has the right to choose the medium of instruction at the primary
school stage under Article 19(1)(a) and not under Article 21 or
Article 21A of the Constitution.
34. Question No.(iii): Does the imposition of mother tongue in any way
affect the fundamental rights under Article 14, 19, 29 and 30 of the
Constitution?
As the High Court has not come to the conclusion in the impugned judgment
that imposition of mother tongue in any way affects the fundamental right
under Article 14 of the Constitution, it is not necessary for us to decide
this question. We will have to decide whether imposition of mother tongue
in any way affects the fundamental rights under Articles 19, 29 and 30 of
the Constitution.
35. Articles 29(1) and 30(1) of the Constitution are quoted hereinbelow:
29. Protection of interests of minorities:- (1) Any section of the
citizens residing in the territory of India or any part thereof having
a distinct language, script or culture of its own shall have the right
to conserve the same.
30.Right of minorities to establish and administer educational
institutions:- (1) All minorities, whether based on religion or
language, shall have the right to establish and administer educational
institutions of their choice.”
A reading of clause (1) of Article 29 of the Constitution provides that any
section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have
the right to conserve the same and clause (1) of Article 30 provides that
all minorities, whether based on religion or language, shall have the right
to establish and administer educational institutions of their choice.
36. In D.A.V. College, Bhatinda, etc. v. The State of Punjab & Ors.
(supra), the Punjabi University in exercise of its power under
Section 4(2) of Punjabi University Act (35 of 1961), made Punjabi the
sole medium of instruction and examination in all colleges affiliated
under Punjabi University. It was contended inter alia before this
Court that prescription of such medium of instruction and examination
in a language which is not the mother tongue of the minority which
has established the educational institution is violative of the
rights conferred under clause (1) of Article 29 and clause (1) of
Article 30 of the Constitution and the Constitution Bench of this
Court has upheld this contention in the following words:
“The right of the minorities to establish and administer
educational institutions of their choice would include the right
to have a choice of the medium of instruction also which would
be the result of reading Article 30(1) with Article 29(1).”
Thus, a Constitution Bench of this Court in D.A.V. College, Bhatinda, etc.
v. The State of Punjab & Ors. (supra) has already held that minorities have
a right to establish and administer educational institutions of ‘their
choice’, and therefore they have the choice of medium of instruction in
which education will be imparted in the institutions established and
administered by them.
37. The contention of the learned Advocate General, however, is that the
aforesaid decision and other decisions of this Court have been
rendered in cases where the State imposed a medium of instruction in
a language different from the language of the minority community, but
if the State prescribes the medium of instruction to be the mother
tongue of the child, which is the language of the minority community,
there is no violation of the right of the linguistic minority under
Article 30(1) of the Constitution. We do not find any merit in this
contention because this Court has also held that the “choice” of the
minority community under Article 30(1) need not be limited to
imparting education in the language of the minority community. In re
The Kerala Education Bill, 1957 (supra), S.R. Das, CJ, writing the
majority opinion of a seven Judge Bench of this Court, held:
“23. Having disposed of the minor point referred to above, we
now take up the main argument advanced before us as to the
content of Art. 30(1). The first point to note is that the
article gives certain rights not only to religious minorities
but also to linguistic minorities. In the next place, the right
conferred on such minorities is to establish educational
institutions of their choice. It does not say that minorities
based on religion should establish educational institutions for
teaching religion only, or that linguistic minorities should
have the right to establish educational institutions for
teaching their language only. What the article says and means
is that the religious and the linguistic minorities should have
the right to establish educational institutions of their choice.
There is no limitation placed on the subjects to be taught in
such educational institutions. As such minorities will
ordinarily desire that their children should be brought up
properly and efficiently and be eligible for higher university
education and go out in the world fully equipped with such
intellectual attainments as will make them fit for entering the
public services, educational institutions of their choice will
necessarily include institutions imparting general secular
education also. In other words, the article leaves it to their
choice to establish such educational institutions as will serve
both purposes, namely, the purpose of conserving their religion,
language or culture, and also the purpose of giving a thorough,
good general education to their children.”
38. We may now examine whether an unaided non-minority school has a
similar right to choose a medium of instruction under Article
19(1)(g) of the Constitution at the primary school stage. Under
Article 19(1)(g) of the Constitution, a citizen has the right to
practise any profession, or to carry on any occupation, trade or
business. In T.M.A. Pai Foundation & Ors. v. State of Karnataka &
Ors. (supra), Kirpal C.J. writing the majority judgment interpreted
this right under Article 19(1)(g) of the Constitution to include the
right to establish and run educational institutions. In paragraph 25
of the aforesaid judgment in T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. (supra), the majority judgment held:
“The establishment and running of an educational institution
where a large number of persons are employed as teachers or
administrative staff, and an activity is carried on that results
in the imparting of knowledge to the students, must necessarily
be regarded as an occupation, even if there is no element of
profit generation. It is difficult to comprehend that
education, per se, will not fall under any of the four
expressions in Article 19(1)(g). “Occupation” would be an
activity of a person undertaken as a means of livelihood or a
mission in life. ”
Thus, the word “occupation” in Article 19(1)(g) of the Constitution was
interpreted by the majority judgment of this Court in T.M.A. Pai Foundation
& Ors. v. State of Karnataka & Ors. (supra), to include the activity which
results in imparting of knowledge to the students even if there is no
element of profit generation in such activity. However, unlike Article
30(1) of the Constitution, Article 19(1)(g) does not have the word
“choice”. The absence of the word “choice”, in our considered opinion,
does not make a material difference because we find that Article 19 of the
Constitution is titled “Right to Freedom” and the word “freedom” along with
the word “any” before the word “occupation” in Article 19(1)(g) of the
Constitution would mean that the right to establish and administer an
educational institution will include the right of a citizen to establish a
school for imparting education in a medium of instruction of his choice.
If a citizen thinks that he should establish a school and in such a school,
the medium of instruction should be a particular language then he can
exercise such right subject to the reasonable regulations made by the State
under Article 19(6) of the Constitution. We are thus of the considered
opinion that a private unaided school which is not a minority school and
which does not enjoy the protection of Articles 29(1) and 30(1) of the
Constitution can choose a medium of instruction for imparting education to
the children in the school.
39. It is, however, well settled that all educational institutions can
be subject to regulations by the State for inter alia maintenance of
proper academic standards. While discussing the right to establish
and administer an educational institution under Article 19(1)(g) of
the Constitution, Kirpal C.J., speaking for the majority of Judges in
T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. (supra),
held:
“The right to establish an educational institution can be
regulated; but such regulatory measures must, in general, be to
ensure the maintenance of proper academic standards, atmosphere
and infrastructure (including qualified staff) and the
prevention of maladministration by those in charge of
management……”
Again, in the majority judgment in T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. (supra), Kirpal C.J. while discussing the right of a
minority educational institution protected under Article 30(1) of the
Constitution;
“……It was permissible for the authorities to prescribe
regulations, which must be complied with, before a minority
institution could seek or retain affiliation and recognition.
But it was also stated that the regulations made by the
authority should not impinge upon the minority character of the
institution. Therefore, a balance has to be kept between the
two objectives – that of ensuring the standard of excellence of
the institution, and that of preserving the right of the
minorities to establish and administer their educational
institutions......”
Thus, whether it is a private unaided institution enjoying the right under
Article 19(1)(g) of the Constitution or whether it is a private institution
enjoying the special protection of a minority institution under Article
30(1) of the Constitution, the State has the power to adopt regulatory
measures which must satisfy the test of reasonableness. Moreover, the
State may exercise this regulatory power either by making a law or by
issuing an executive order.
40. The learned Advocate General for the State of Karnataka relied on
the judgment of this Court in Gujarat University & Anr. v. Shri
Krishna Ranganath Mudholkar & Ors. (supra) to submit that this power
to prescribe regulations for maintaining the standards of education
would include the power to prescribe the medium of instruction. We
quote the relevant portion of the decision of the Constitution Bench
of this Court in Gujarat University & Anr. v. Shri Krishna Ranganath
Mudholkar & Ors. (supra) on which he has placed reliance:
“23.…..The power to legislate in respect of primary or secondary
education is exclusively vested in the States by item No.II of
List II, and power to legislate on medium of instruction in
institutions of primary or secondary education must therefore
rest with the State Legislatures. Power to legislate in respect
of medium of instruction is, however, not distinct legislative
head; it resides with the State Legislatures in which the power
to legislate on education is vested, unless it is taken away by
necessary intendment to the contrary. Under items 63 to 65 the
power to legislate in respect of medium of instruction having
regard to the width of those items, must be deemed to vest in
the Union. Power to legislate in respect of medium of
instruction, in so far it has a direct bearing and impact upon
the legislative head of co-ordination and determination of
standards in institutions of higher education or research and
scientific and technical institutions, must also be deemed by
item 66 List I to be vested in the Union.”
From the aforesaid quotation, we find that the Constitution Bench has held
that under the scheme of distribution of legislative powers between the
States and the Union, the power to legislate in respect of primary or
secondary education is exclusively vested in the States and has further
held that in exercise of this power the State can prescribe the medium of
instruction. The Constitution Bench, however, has not held that this power
of the State to prescribe the medium of instruction in primary or secondary
schools can be exercised in contravention of the rights guaranteed under
Article 19(1)(a) and 19(1)(g) of the Constitution. The Constitution Bench
has only held that if the medium of instruction has a direct bearing or
impact on the determination of standards in institutions of higher
education, the legislative power can be exercised by the Union to prescribe
a medium of instruction. For example, prescribing English as a medium of
instruction in subjects of higher education for which only English books
are available and which can only be properly taught in English may have a
direct bearing and impact on the determination of standards of education.
Prescribing the medium of instruction in schools to be mother tongue in the
primary school stage in classes I to IV has, however, no direct bearing and
impact on the determination of standards of education, and will affect the
fundamental rights under Articles 19(1)(a) and 19(1)(g) of the
Constitution.
41. We may now consider the decision of the Division Bench of this Court
in English Medium Students Parents Association v. State of Karnataka
& Ors. (supra) on which reliance has been placed by the State of
Karnataka. In paragraph 20 at page 560 of the aforesaid decision as
reported in the SCC, this Court has held that all educational experts
are uniformly of the opinion that pupils should begin their schooling
through the medium of their mother tongue and the reason for this
opinion is that if the tender minds of the children are subject to an
alien medium, the learning process becomes unnatural and inflicts a
cruel strain on the children which makes the entire learning process
mechanical, artificial and torturous but if the basic knowledge is
imparted through mother tongue, the young child will be able to
garner knowledge easily. In paragraph 17 at page 559 of the
aforesaid judgment, the Division Bench of this Court has also given
the reasons why it did not find the impugned Government order to be
ultra vires Articles 14, 29(1) and 30(1) of the Constitution. These
reasons are quoted hereinbelow:
“16. In view of the liberty given to the State of Karnataka the
present GO bearing No.87 PROU SE BHA 88, Bangalore dated June
19, 1989 (quoted above) has come to be passed. A corrigendum
also came to be issue on June 22, 1989 which reads as under:
“For para (i) of Order portion of the abovesaid Government
Order dated June 19, 1989 i.e., from the words ‘From Ist
standard …. subject to study’ the following para shall be
substituted:
‘From Ist 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.’ “
17. A careful reading of the above GO would clearly indicate
that the element of compulsion at the primary stage is no longer
there because the GO is unequivocal when it says from Ist to
IVth standards mother tongue will be the medium of instruction,
only one language from Appendix I will be compulsory subject of
study. From IIIrd standard onwards Kannada will be an option
subject for non-Kannada speaking students. It is to be taught
on voluntary basis there being no examination at the end of the
year in Kannada language……”
Thus, the reasons given by the Division Bench of this Court to uphold the
Government order of the State of Karnataka dated 19.06.1989 are that the
Government had issued a corrigendum on 22.06.1989 and a reading of the
Government order after the corrigendum would show that there was no element
of compulsion at the primary stage any longer that the medium of
instruction from I standard to IV standard would be in mother tongue. The
decision of this Court in English Medium Students Parents Association v.
State of Karnataka & Ors. (supra), is, therefore, not an authority for the
proposition that prescription of mother tongue in classes I to IV in the
primary school can be compelled by the State as a regulatory measure for
maintaining the standards of education.
42. We are of the considered opinion that though the experts may be
uniform in their opinion that children studying in classes I to IV in
the primary school can learn better if they are taught in their
mother tongue, the State cannot stipulate as a condition for
recognition that the medium of instruction for children studying in
classes I to IV in minority schools protected under Articles 29(1)
and 30(1) of the Constitution and in private unaided schools enjoying
the right to carry on any occupation under Article 19(1)(g) of the
Constitution would be the mother tongue of the children as such
stipulation. We accordingly answer question No.(iii) referred to us
and hold that the imposition of mother tongue affects the fundamental
rights under Articles 19, 29 and 30 of the Constitution.
43. Question No.(iv): Whether the Government recognized schools are
inclusive of both government-aided schools and private & unaided
schools?”
In Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra),
Jeevan Reddy J. writing the judgment for himself and for Pandian J. has
held in paragraph 204 at page 753 that the right to establish an
educational institution does not carry with it the right to recognition or
the right to affiliation and that recognition and affiliation are essential
for meaningful exercise of the right to establish and administer
educational institutions. In this judgment, the two Judges of this Court
have also held that recognition may be granted either by the Government or
by any other authority or body empowered to accord recognition and
affiliation may be granted by the academic body empowered to grant
affiliation. In this judgment, the two Judges of this Court have further
held that it is open to a person to establish an educational institution,
admit students, impart education, conduct examination and award
certificates but the educational institution has no right to insist that
the certificates or degrees awarded by such institution should be
recognized by the State and therefore the institution has to seek such
recognition or affiliation from the appropriate agency. In the aforesaid
case of Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors.
(supra), S. Mohan J. in his concurring judgment has also observed in
paragraph 76 at page 693 that recognition is for the purpose of conforming
to the standards laid down by the State and affiliation is with regard to
the syllabi and the courses of study and unless and until they are in
accordance with the prescription of the affiliating body, certificates
cannot be conferred and hence the educational institution is obliged to
follow the syllabi and the course of the study. These views expressed by
the three Judges in the Constitution Bench judgment of this Court in Unni
Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra) have not
been departed from in the majority judgment in T.M.A. Pai Foundation & Ors.
v. State of Karnataka & Ors. (supra). Kirpal C.J. writing the judgment in
T.M.A. Pai Foundation (supra) on behalf of the majority Judges has held
that the fundamental right to establish an educational institution cannot
be confused with the right to ask for recognition or affiliation. From the
aforesaid discussion of the law as developed by this Court, it is clear
that all schools, whether they are established by the Government or whether
they are aided by the Government or whether they are not aided by the
Government, require recognition to be granted in accordance of the
provisions of the appropriate Act or Government order. Accordingly,
Government recognized schools will not only include government aided
schools but also unaided schools which have been granted recognition.
44. Question No.(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 ?
We have extracted Article 350A of the Constitution above and we have
noticed that in this Article it is provided that it shall be the endeavour
of every State and of every local authority within the State to provide
adequate facilities for instruction in the mother tongue at the primary
stage of education to children belonging to linguistic minority groups. We
have already held that a linguistic minority under Article 30(1) of the
Constitution has the right to choose the medium of instruction in which
education will be imparted in the primary stages of the school which it has
established. Article 350A therefore cannot be interpreted to empower the
State to compel a linguistic minority to choose its mother tongue only as a
medium of instruction in a primary school established by it in violation of
this fundamental right under Article 30(1). We accordingly hold that State
has no power under Article 350A of the Constitution to compel the
linguistic minorities to choose their mother tongue only as a medium of
instruction in primary schools.
45. In view of our answers to the questions referred to us, we dismiss
Civil Appeal Nos.5166-5190 of 2013, 5191-5199 of 2013, the Civil Appeal
arising out of S.L.P. (C) No.32858 of 2013 and Writ Petition (C) No.290 of
2009. There shall be no order as to costs.
.....……………..……………………CJI.
(R.M. Lodha)
.....……………..……………………….J.
(A. K. Patnaik)
.....……………..……………………….J.
(Sudhansu Jyoti Mukhopadhaya)
.....……………..……………………….J.
(Dipak Misra)
...…....………….……………………..J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
May 06, 2014.
