TaxTMI 
TaxTMI 
2008 (7) TMI 1090
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....y and number of persons coming out of our schools and colleges will depend our success in the great enterprise of national reconstruction whose principal objective is to raise the standard of living of our people. The task is neither unique nor is it quite new. But its magnitude, gravity and urgency have increased immensely and it has acquired a new meaning and importance in the context of liberalisation, globalisation and privatisation. If the pace of national development is to be accelerated there is need for a well defined, bold and imaginative educational policy and for determined and vigorous action to vitalize, improve and expand education. 2. Education is to be used as a powerful instrument of social, economic and political change and therefore has to be related to long term national aspirations, the programmes of national development on which the country is engaged and difficult short term problems, it is called upon to face. If this change on a grand scale is to be achieved without violent revolution, there is one instrument and one instrument only, that can be used, Education. 3. In a democracy the primary purpose of education is to provide an individual with the wi....
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....ation to various aspects urged, we have tried to find a solution to this vexed problem, in the background of a constitutional set up, which affects not only the present generation but also the generations yet to be born. 7. These are all batch of Writ Petitions filed by linguistic and religious minorities, religious denominations, parents, parents associations, children through their parents and educational institutions run by the majority, challenging the Government Orders dated 22.4.1994 and 29.4.1994. 8. Writ Petition Nos. 14363/1994, 14377/1994, 15491/1994 19453/1994, 22563/1994, 30645/1999, 25647/1994, 18571/1994 and 19331/1994 are all by the managements belonging to majority community. 9. Writ Petition Nos. 17337/1994, 18787/1994, 19469/1994, 20165/1994, 17338/1994 and Writ Appeal No. 2415/1995 are all filed by the parents and associations formed by the parents. 10. Writ Petition Nos. 11785/1995, 29540/1995, 22752/1994, 19434/1994 and 900/2000 are Writ Petitions filed by several linguistic minority institutions. 11. Writ Petition Nos. 17677/1994 and 19346/1994 are filed by religious minorities and certain religious denominations. 12. In pursuance of the impu....
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....the order is arbitrary since it indirectly imposes Kannada on the minority groups which is impermissible in view of the various rulings of the Supreme Court and especially of this Court reported in the case of; General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka AIR1989Kant226 . Among other contentions, it is urged that even a child whose mother tongue is Kannada is denied admission to an English medium school which is aided or maintained by the State only on the ground of language. In so far as the minorities are concerned, the order directly infringes upon their constitutional right to establish and manage institutions of their choice. 4. In 'General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka '(supra), the constitutional validity of an earlier order making the study of Kannada in addition to mother tongue by children belonging to linguistic minority groups from the first year of the Primary School compulsory and prescribing Kannada as the sole first language in the Secondary Schools was challenged. The opinion of the majority of the Full Bench is found at page Nos. 562 and 563. 5. In E.M. S....
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....e is competent to regulate the exercise of such a right by the minorities. What governs Article 30(1) also would govern the Fundamental Rights under Articles 19(1)(g) and 21, also. Supreme Court made a distinction between a 'restriction' and a 'regulation'. Regulation secures the proper functioning of the institutions, in matters educational. In other words, while restrictions impede the exercise of the right, 'regulations' polishes the right so that, there would be a proper and smooth exercise of the right in the interest of the very persons exercising the Fundamental Right. 8. Apart from the apparent inconsistency between the views taken by this Court in the aforesaid two cases, it is brought to our notice that the state has appealed against the judgment in Sahyadri Education Trust v. State of Karnataka ILR1988KAR2188 (as affirmed by the Division Bench), while granting special leave, the Supreme Court has made the following order-- Since education is in the concurrent list, we feel that it is proper to hear the Central Government on the question involved in these cases. The Central Government shall be impleaded as the respondent in all th....
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.... petition to support the Government Order. Therefore, for purposes of convenience, the facts of the said writ petition and die statement of objections filed in the same are taken as the factual basis for deciding the dispute between the parties. 17. The Associated Management of Primary and Secondary Schools in Karnataka, a Government recognized unaided English medium schools Association, is the petitioner. It is a society-registered under the Karnataka Societies Registration Act, 1960 on 15.11.1989. It consists of recognized, unaided English medium primary and secondary schools managements in Karnataka. More than one lakh students are studying in the petitioners' Member - Institutions and more than 30,000 teachers are working with them. Over 120 schools are the constituents of the petitioners' society. All these schools were established before 19.06.1989. 18. The Government of Karnataka by its order dated 19.06.1989, issued ah order spelling out its language policy. The aforesaid order was challenged before this Court and the Supreme Court. The Supreme Court by its order dated 8.12.1993 in W.P.No.536/1991 and Civil Appeal Nos. 2856 & 2857 of 1989 declined to interfere....
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....t swells the ranks of the unemployed English medium teachers. The State view cannot substitute the parental preference for the medium of instructions of wards. The new language policy results in injustice, inequality and disparity. It leaves free the affluent Kanadiga parents to send their wards abroad and get them educated in English and thereby ensure that such wards have an edge over their less fortunate brethren, who are ordained by the State to study in Kannada medium. In today's context, the students coming out of English medium schools have upward mobility. Those who belong to the centrally governed institutes like the ICSE, CBSE schools are even better equipped to succeed in national or international entrance tests and examinations. If the regional language is to be taught in principle to all students, then, let it be taught as the language and not as a medium. In fact, the anxiety of the State to teach a child in its mother tongue coercively with a sledge-hammer would only prove to be counter productive. On the practical level, the introduction of such reforms, if they can be called reforms, should be based on careful planning. These are academic matters which concern ....
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....t a law and wherever the subject is not covered by an enacted law, the same can be operated upon by the State in exercise of its executive power. However, the executive power cannot be extended to impose restrictions on the exercise of fundamental rights and every act done by the State must, if it is to operate to the prejudice of any person, be supported by legislative authority. The impugned Government Order which imposes restrictions on the exercise of fundamental rights, in the absence of legislation authorizing the same is liable to be struck down. 22. In the Writ Petitions filed by the parents, parents associations and students have contended that they have a fundamental right to choose the medium of instruction for their children as guaranteed under Article 19(1)(a)(g) of the Constitution of India and that has been denied to them by the impugned order. In the Writ Petitions filed by the religious denominations, they complain that they have aright to establish and maintain an educational institution, under Article 26 of the Constitution which right has been now infringed by the impugned order. In the Writ Petitions filed by linguistic and religious minorities they contend ....
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....Bench of this Court. Even this Government Order of the year 1989, prescribing mother tongue as the medium of instruction for standards 1 to 4 and prescribing Kannada as a compulsory subject from 5th standard onwards in the case of those who have not studied Kannada from standards 1 to 4 was challenged by filing a writ petition before the Supreme Court under Article 32 of the Constitution of India in W.P. No. 336/1991. The said writ petition as well as the appeals filed by the State challenging the Full Bench judgment of this Court were heard by the Supreme Court and a common judgment was rendered in the case of English Medium Students Parents Association v. State of Karnataka and Ors. AIR1994SC1702 It is respectfully submitted that all the contentions now urged in the present writ petitions are liable to be negatived in view of the aforesaid Supreme Court judgment which is binding on all, as the Law of the land. 24. It is contended, that the Supreme Court in the aforesaid decision fully upheld the majority view of the Full Bench of this Court and dismissed the appeals preferred by the State. In effect, the Supreme Court held, mat mother tongue should be the medium of instruction....
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....ment Order embodies measures which are regulatory in nature and which are absolutely necessary for maintaining academic discipline. The State is entitled to enforce regulatory measures in the matter of education and the present measure is one such regulatory measure which the Government is competent to impose. Neither the management nor the parents have an absolute right to decide about the medium of instruction. As pointed out by the Supreme Court in the aforesaid case, the question relating to medium of instruction is a matter of policy and the State Government is entitled to formulate such policy as it considers beneficial to the students. The Supreme Court has pointed out, that the Courts have no power or jurisdiction to entertain with such formulation of policies and the same should be left to the discretion of the concerned State Governments. Therefore, it was contended, the present writ petition filed challenging the Government Policy was not maintainable. The present Government Order is in substance the same as the Government Order dated 19.6.1989. Government Order having been upheld by the Supreme Court, challenge to the present Government Order is unsustainable. It was sp....
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....rticle 19(1)(g) includes the right to establish an educational institution to impart education in a language of the choice of the citizen. Similarly, the right to establish and maintain an institution for charitable purposes which includes educational institution is conferred on every religious denominations, majority or minorities under Article 26 of the Constitution. Under Article 29(1) of the Constitution, every section of the citizens in this country having a distinct script or culture of its own have been given the right to conserve the same and for the said purpose establish and administer educational institutions of their choice. Similarly, the linguistic and religious minorities have been conferred the fundamental right to establish and administer educational institutions of their choice and, therefore, establishment and administration of an educational institution includes choosing the medium of instruction in which education is to be imparted and is a fundamental right guaranteed to every citizen, every religious denomination and linguistic and religious minorities under Articles 19(1)(g), 26, 29(1) and 30(1) of the Constitution of India. The Government Order is also viol....
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....ce to the direction of the Division Bench of this Court and is in consonance with the Division Bench judgment in ILR 1989 Kar.1595 which has been affirmed by the Supreme Court. Even on merits, it was contended, that the impugned order is a regulatory measure enforced to achieve excellence in education. The experts are almost unanimous in their opinion that mother tongue should be the medium in primary stage. The observations of the Supreme Court and the Full Bench and the Division Bench of this Court fully supports the same. Even if an observation therein are held to be not a precedent, the impugned Government Order can be justified on the basis of Article 350-A alone. The Government Order making it obligatory to follow constitutional mandate cannot be held to be illegal or invalid. The choice of the parent is to agree to the regulatory measure within the competence of the State. The said policy knows what is good for a citizen, even though the citizen also knows what is good for him. If the State has the duty to provide the facility, it also has a right to insist that the said facility shall be availed of. It is the accepted position that all the rights which minorities possess....
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....te. No one has any right in respect of a child. Only duties and responsibilities. Constitutional mandate is to preserve linguistic and cultural diversity. In its role as the protector of child's interest, State has got every right to formulate the language policy and declare mother tongue as the medium of instruction in the primary stage. Parents have no choice, where child's interest and welfare is involved. The parents are guided only by their personal whims and fancies and imaginary aspirations and in pursuit of the same, in fact, they will be acting against the interest of the child. In support of her contention, she has relied on relevant literature as could be gathered from the articles published in various international magazines. Points for consideration: 33. In the light of the aforesaid submissions, the questions that arise for consideration are as under: 1) Is the right to choose the medium of instruction at the primary level, either to study or impart education, a fundamental right guaranteed under any of the Articles 19(1)(a)(g), 26, 29 and 30(1) of the Constitution of India? 2) Can the State by way of regulation restrict the said right ....
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....late the immeasurable loss sustained by the nation owing to thousands of its youngmen having been obliged to waste years in mastering a foreign language and its medium, of which in their daily life they have the least use and in learning which they had to neglect their own mother-tongue and their own literature. Again to quote Mahatma Gandhi: "The medium of instruction should be altered at once and at any cost, the provincial languages being given their rightful place. I would prefer temporary chaos in higher education to the criminal waste that is daily accumulating." Mahatma Gandhi in his Speech Published in Young India, 1-9-21 The foreign medium has caused brain fag, put an undue strain upon the nerves of our children, made them crammers and imitators, unfitted them for original work and though, and disabled them for filtrating their learning to the family or the masses. The foreign medium has made our children practically foreigners in their own land. It is the greatest tragedy of the existing system. The foreign medium has prevented the growth of our vernaculars. If I had the powers of a despot, I would today stop the tuition of our boys and girls through ....
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.... waste time and energy. When the mental instruments are sufficiently developed to acquire a language easily and swiftly, that is the time to introduce him to many languages, not when he can only partially understand what he is taught and masters if laboriously and imperfectly. Moreover, one who has mastered his own language, has one very necessary facility for mastering another. With the linguistic faculty unsatisfactorily developed in one's own tongue, to master others is impossible. To study science with faculties of observation, judgment, reasoning and comparison only slightly developed is to undertake a useless and thankless labour. So, it is with all other subjects. 37. Though Dr. Gokak Committee was constituted for the purpose of finding out the feasibility of imposing Kannada as a compulsory subject for non-Kannadigas, in the course of the report, it has made few comments on the feasibility of Kannada being the medium of instruction which reads as under: Kannada has become the official language. The day is not far off when Kannada should be the sole official language in Karnataka. The authorities of the Public Service Commission are yet to realise this and tr....
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....a cruel strain on the children which makes the entire transaction mechanical. Besides, the educational process becomes artificial and torturous. The basic knowledge can easily be gathered through the mother-tongue. The introduction of a foreign language tends to threaten to atrophy the development of mother-tongue. When the pupil comes of age and reaches the Vth standard level, the second language is introduced. The child who has not taken Kannada as a first language is required to take it as a second language. At the secondary stage the three language formula is introduced. However, in cases of non- Kannada speaking students grace marks up to 15 are awarded. Certainly, it cannot be contended that a student studying in a school from Karnataka need not know the regional language. It should be the endeavour of every State to promote the regional language of that State. In fact, the Government of Karnataka has done commendably well in passing this GO. Therefore, to contend that the imposition of study of Kannada throws an undue burden on the students is untenable. 39. The opinion of the educational experts and international organizations as reflected in news letters, magazines, res....
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....ministerial task force on mastering the French language, "speaking a language other than French, regional or otherwise, is no longer a handicap for a child." The countries of the North are taking in more and more immigrants and have to adapt to their presence. In 2000, more than a third of the population of western Europe under 35 was of immigrant origin, according to a recent UNESCO report on linguistic diversity in Europe. Some countries have already responded. They include the Australian State of Victoria, where bilingualism has been steadily introduced in all primary schools over the past twenty years. In 2002, compulsory courses in "a language other than English" involved forty-one languages in primary and secondary schools. Indonesian, Italian, Japanese, German and French are the most popular. (d) Huge Obstacles: Mother tongue education and multilingualism are increasingly accepted around the world and speaking one's own language is more and more aright. Encouraging education in the mother tongue, alongside bilingual or multilingual education, is one of the principle set out by UNESCO in a new position paper. On top of this, la....
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....chment to his or her native culture while ensuring that every one can open up to others and reap the benefits of an increasingly interactive world. UNESCO - EFA Global Monitoring Report - 2005 Improving Teaching and Learning - Language for Instruction Matters -- Initial literacy is acquired more easily in the mother tongue: The situation in South-East Asia and China illustrates the diversity of languages and of patterns of language used in school. In this part of the world there is a general trend towards more widespread use of local languages in the first few years of primary education. There is now a strong body of evidence that bilingual schooling offers significant benefits in learning outcomes. In the most successful models, the mother tongue is used in the early years of schooling so that children can acquire and develop the literacy skills that enable fuller participation in learning activities. In a growing number of countries, after four or five years (earlier in some cases) there is a transition to learning and using the second or foreign language as the medium of instruction. In this way initial literacy is acquired more easily, fac....
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....the capacity to listen and dialogue should be encouraged: first of all in the mother tongue, then, if the mother tongue is official or the national language in the country, in one or more foreign languages. Historically, may it be Europe, Asia or South America, only those countries have attained higher literacy rates where mother tongues were/are used as the medium of instruction at the elementary and secondary level of schooling. England had scant literacy rate when Latin was the medium of instruction. The literacy rates improved when French was adopted, but it still remained limited to middle income groups. Mass literacy was only achieved when English, the mother tongue of the inhabitants, was made the medium of education. Kothari Report: Medium of Education at School & College: The medium selected should enable students to acquire knowledge with facility, to express themselves with clarity and to think with precision and vigour. From this point of view the claims of the mother tongue are pre-eminent. The use of first and second languages in Education: a review of educational experience Washington D.C. World Bank. Country Department III: ....
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....language other than mother tongue of the learner, it is likely that initial learning will be slower and achievement lower. For this reason, educators have long advocated the benefits of offering, wherever possible, initial instruction in the mother tongue. 40. Therefore, studies worldwide show that the Children learn better in their mother-tongue. Studies have shown children do better if they get a basic education in their own language. Encouraging education in the mother-tongue, alongside bilingual or multilingual education, is one of the principles set out by UNESCO in a new position paper. Hence 21st February of each year is proclaimed in 1999 by UNESCO as International Mother Language Day. UNESCO's universal declaration on cultural diversity (2001) recognizes the importance of languages in promoting cultural diversity and languages are regarded as an integral part of people's identity. In the most successful models, the mother-tongue is used in the early years of schooling so that children can acquire and develop the literary skills that enable fuller participation in learning activities. All the countries of the world are leaning towards earlier education in the mot....
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.... such duty is conferred on the President of India and not on the Courts. A duty to provide adequate facilities for instruction in the mother tongue is coupled with a right to insist on mother tongue being the medium of instruction at the primary stage of education. When the said power coupled with the duty has been performed by the State, no writ can lie to annul such solemn duty performed by the State. 43. In order to appreciate this contention let us look at the Article which is enacted by the Constitution VII Amendment Act 1956, which reads as under: 350-A. Facilities for instruction in mother-tongue at primary stage 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 provisions of such facilities. 44. For proper appreciation of this Article, it is necessary to have the historical background. Prior to independence, the medium of instruction in many schools was ....
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....vide similar facilities in all Government Municipal and District Board Schools where one third of the total number of pupils of the school request for instruction in their mother-tongue. The Government will also required aided schools to arrange for such instruction if desired by the one third of the public pupils provided that there are no adequate facilities for instructions in that, particular language in the area. The regional language will, however, be a compulsory subject through out the secondary stage. The arrangements prescribed above will in particular be necessary in Metropolitan cities or places where a large number of people speaking different language live or areas with a floating population speaking different languages. 45. This vexed question agitated the minds of our constitution makers also as is clear from the discussions while framing the Constitution. There was a demand to include in the fundamental rights, the right to primary education to all children and also that the said primary education should be in the mother tongue of the child. There was a reference to a resolution accepted by the Government of India and published in its gazette on 14th Au....
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....he Government to which I belong. It is such a universally accepted proposition and it is so reasonable that there cannot be any dispute on the principle of it at all. The question is whether we should incorporate it in the Law or in the Constitution. I must frankly say that I find some difficulty in putting matter into a specific article of the Constitution. (underlining by us) 49. After a heated debate in the Constituent Assembly when the final draft of the Constitution was presented to this country, the Constitution did not contain any Article providing primary education as the fundamental right, much less, mother tongue as the medium of instruction in primary education. 50. The structure of the Indian Union has been largely determined by the accidents and circumstances attuning the expansion of British Rule in India. The formation of British Indian provinces in 18th and 19th centuries was governed by considerations of administrative convenience and economy and reasons of military strategy and security. With the emergence of nationalism, towards the end of 19th century, the policy of balance and counter balance began to over-ride purely administrative considerations in m....
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....e more important aspects of the problem, however, are the right of linguistic minorities to instruction in their mother tongues, the use of minority languages in the administration, and the representation of the minorities in the State Services. The language of instruction in educational institutions and the language of the administration are matters that touch, in practice, many vital aspects of the life of every individual. They, therefore, constitute what we regard as the core of the problem of linguistic minorities. 774. We first deal with the question of the right of minorities to instruction in the mother tongue. The Indian Constitution guarantees to the minorities the right to private schools but does not specifically recognise the right to instruction in the mother tongues in public schools. It seems to us that linguistic minorities do not have the resources required to establish and maintain their own educational institutions particularly in rural areas. In such cases, therefore, a positive duty should be cast on the State to provide for facilities to minorities for education in the mother tongue at the primary school stage. 775. It may be recalled that t....
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....blem adequately. It is, of course, clear that, so far as secondary education is concerned, it will have to be treated differently from the education at the primary stage. We, therefore, do not recommend the extension of the principles of the constitutional recognition of the right to have instruction in mother-tongue to secondary education. At the same time, we feel that the Government of India should, in consultation with State Governments lay down a clear policy and also take more effective steps to implement it. 801. Before we conclude, we wish to emphasis that no guarantees can secure a minority against every kind of discriminatory policy of a State Government. Governmental activity at State level affects virtually every sphere of a person's life and a democratic Government must reflect the moral and political standards of the people. Therefore, if the dominant group is hostile to the minorities, the lot of minorities is bound to become unenviable. There can be no substitute for a sense of fair play on the part of the majority and a corresponding obligation on the part of the minorities to fit themselves in as elements vital to the integrated and ordered progress o....
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..... They noticed that the Indian Constitution guarantees to the minorities the right to establish and administer private schools but does not specifically recognise the right to instruction in the mother-tongue in public schools. As the linguistic minorities do not have the resources required to establish and maintain their own educational , institutions, particularly in rural areas, they wanted that a positive duty should be cast on the State to provide for facilities to minorities for education in the mother-tongue at the primary school stage. After examining the reasons why the suggestion for making suitable provision in the Constitution on the subject did not find favour with the Constituent Assembly and why the right of the minorities to have education at the primary stage, should be placed on a more stable footing than what was the position at that time, they recommended that Constitutional recognition should be given to this right, and the Central Government should acquire power to issue appropriate directives for the enforcement of this right, on the lines of provisions contained in Article 347 of the Constitution. It is in this background and to ally the fear of linguistic m....
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....olicy. Therefore, Article 350-A of the Constitution confers a right only on the linguistic minorities only to insist on providing facilities for primary education in their mother tongue, but no right or power is conferred on the State to impose its policy on the linguistic minorities. The State cannot by virtue of this provision compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary school. No such right is conferred on the State by this provision and such a right do not flow from this Article. Resjudicata - Earlier Decisions -Ratio Decidendi 54. Ever-since pre independence days, there was a provision to study Sanskrit as first language in the syllabus prescribed in High Schools. The same continued even after acceptance of the 3 language formula. After independence, by Government Order dated 20th October 1979, provision was made to delete Sanskrit language from the list of first languages and to study as one of the combined languages. This policy was opposed by the lovers of Sanskrit language. Many scholars and experts in the field of education appealed to the Government to retain Sanskrit as first language. A writ petition was....
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....e recommendations of the Committee and having regard to all aspects of the matter are pleased to order as follows: 1. At the secondary school level, the language pattern to be adopted will be as follows: A. First Language: Kannada or mother tongue (Urdu, Tamil, Telugu, Marathi, English, Hindi) to carry 150 marks. B. Two other languages from the following Kannada, Hindi, English, Sanskrit, Arabic, Persian, Urdu, Tamil, Telugu, marathi to carry 100 marks each. Note:- (1) Students offering a language other than Kannada as first language will study Kannada as a compulsory language and any one of the remaining languages (from Group B) both of which will be examined subjects for the SSLC. (2) Students offering Kannada as first language will take any two of the above languages (from B Group) except Kannada. 2. Students coming from outside the State and joining VIIIth, IXth or Xth standard and who have not studied any of the languages listed as first language may be allowed to take additional English or Hindi as first language. 3. The teaching of Kannada from IIIrd standard in non-Kannada schools will commence....
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.... be given for a period of 10 years, (a) in the first language examination, to students whose mother tongue is not Kannada; and (b) in Hindi examination to students who study Hindi and whose mother tongue is not Hindi. 1. Students coming from outside the State and joining VIIIth or IXth or Xth standards in the State of Karnataka and who did not study Kannada earlier may be permitted to take English or Hindi as first language. 2. The teaching of Kannada from 1st standard in non-Kannada schools will commence from the academic year 1982-83 itself and the language pattern for High Schools prescribed in para (1) above will come into force from the academic year 1987-88. 3. Students joining VIIIth standard from the academic year 1982-83 should not be permitted to take Sanskrit as first language or as composite first language. They can, however, take Sanskrit as third language. This will continue till the language pattern prescribed in para (1) takes effect from the academic year 1987-88. Note: Para (4) above which corresponds to para (4) of Government Order No. ED 113 SOH 79 dated April 30, 1982 shall not be given effect to pending disposal of ....
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....y guaranteed under Article 14 of the Constitution? (3) Whether, on the facts and in the circumstances of the case, the Circular dated Aug. 11, 1982 issued by the Director of Public Instruction of the State Government is violative of arts. 14, 29(1) and 30(1) of the Constitution 61. On such reference, the Full Bench framed the following question as the question arising for consideration before them: The question for our consideration is whether such prescription is violative of Articles 14, 29 and 30 of the Constitution and a breach of obligation cast upon the State under Article 350-A of the constitution, in so far it relates to primary education. 62. After hearing the parties at length, and after considering the relevant judgments on the point, their conclusions were as under: We shall now set out the summary of our conclusions: I. Primacy should be accorded to Kannada in this State is indisputable. But as the supremacy of the Constitution of India is inviolable, primacy to Kannada could be secured without violating any of the provisions of the Constitution. The object of the impugned Government Order to secure primacy to Kannada in this S....
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....n in their mother-tongue from the first year of the primary school, is violative of the fundamental right to equality and equal protection of the laws guaranteed to the petitioners under Article 14 of the Constitution. IV. The impugned order which compels the institutions established by linguistic minorities to teach Kannada as a compulsory subject from the first year of the primary school is also violative of the fundamental right guaranteed to linguistic minorities for conserving and developing their script and language under Article 29 and the right to establish and administer the educational institution of their choice guaranteed under Article 30 of the Constitution. V. The prescription of Kannada as the sole first language at the secondary school level is violative of the fundamental right to equality and equal protection of the laws guaranteed under Article 14 of the Constitution. VI. The compulsory prescription of Kannada as the first language in respect of high schools established by linguistic minorities is also violative of the fundamental right guaranteed to linguistic minorities to conserve and develop their language and script and to establis....
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.... or rules and make it applicable to all those whose mother tongue is Kannada and also to linguistic minorities who are and who become permanent residents of this State, in all primary and secondary schools respectively, whether they are Government or Government recognised, including those established by any of the linguistic minorities. Thereafter, the aforesaid writ petitions were posted before the Division Bench for final disposal of the petitions. When the writ petitions were taken up for consideration by the Division Bench, the Division Bench after referring to paragraphs 26, 27, 28 and 47 of the Full Bench judgment, held as under: From the Full Bench Judgment, it is clear that the State is under a duty to provide lower primary education up to first four years in mother-tongue and therefore it should ensure that primary education upto fourth standard, whether it is in Government Schools or private schools recognised by the Government, whether aided or not aided, whether established by linguistic minorities or otherwise, should be in mother-tongue if the prescribed number of children having a particular language as their mother-tongue get admitted to any of these pri....
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....before the Supreme Court. During the pendency of the matter before the Supreme Court, the Government issued a fresh Government Order dated 19.06.1989. Clause I of the said Government Order, which is relevant, is extracted as hereunder: (i) From 1st Standard to IVth Standard, mother tongue will be the medium of instruction, where it is expected that normally only one language from Appendix-I will be the compulsory subject of study. From III Standard onwards Kannada will be an optional subject for non-Kannada speaking students. This will not be taught on a purely voluntary basis and it will not be at the cost of any other instruction imparted in the school or any other school activity in which all school children participate. There will be no examination at the end of the year in Kannada language. 64. The validity of the said Government Order was challenged before the Supreme Court in a petition under Article 32 of the Constitution of India. The appeals filed against the aforesaid Full Bench judgment of the High Court and this writ petition under Article 32 of the Constitution were heard together by the Supreme Court. The Supreme Court took note of the fact that ....
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....king Kannada as the sole First language in the secondary schools. Such a provision is violative of articles 29 and 30 of the Constitution. We have no difficulty in upholding the well-considered judgment of the High Court. In fact, the State has accepted the position and issued GO. dated 19-6-1989 which is impugned in W.P. No. 536 of 1991. Therefore, the civil appeals will also stand dismissed. However, in the circumstances of the case, there shall be no order as to costs. Order accordingly. In so far as challenge to Government Order dated 19.06.1989 is concerned it observed as under: As rightly contended by the learned Advocate General where the State by means of the impugned G.O desires to bring to about academic discipline as a regulatory measure it is a matter of policy. The State knows how best to implement the language policy. It is not for the Court to interfere. Where the existence of a fundamental right has to be established by acceptance of a particular policy or a course of action for which there is no legal compulsion or statutory imperative and on which there are divergent views, the same cannot be sought to be enforced by Article 32 of the....
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....e terms of reference of the committee was as under: to suggest remedy for the problems arising from the unrecognised English Primary Schools and also to examine the question of Medium of Primary Schools, and to submit report. 66. The Committee was requested to give its report within a month. The first meeting of the Committee was held on 23.01.1991. Thereafter the Committee held its meetings on 31.01.1991, 11.02.1991, 28.02.1991 and 03.06.1991. The subject matter was discussed in detail and decision was taken. Proceedings of each of the meeting of the Committee was enclosed to the report. Several Associations, Management and some persons submitted their opinion in writing to the Committee. The consolidated report of the said opinion was also enclosed to the said report. Some of the members of the Committee also placed their opinion by note or by letters before the Committee. Copies of the letters were also enclosed. In the background of the proceedings of the meetings of the Committee and after holding discussions again in the meeting of the Committee held on 03.06.1991, the Committee unanimously recommended as follows: (A) Permission should not be given indisc....
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....d 19.06.1989. It was directed by the said order that approval (permission) could be given to those unauthorized English Medium Schools who have strictly fulfilled the provisions of Columns (1) to (4) of sub-rule (2) of Rule 12 of Code of Primary Schools Education and that in respect of English Medium Schools which are not entitled for approval, if they have fulfilled other conditions of grant-in-aid code, permission can be given to conduct Kannada or other medium schools and that students can change over to any other language medium from 5th Standard and above. 68. The Supreme Court rendered its judgment on 08.12.1993 upholding the Full Bench judgment of the High Court and also the legality of the order passed by the Government on 19.06.1989, with an observation that Government is well aware how to implement its language policy effectively and the Court should not interfere with the same. 69. It is in this background and in the light of the judgment of the Supreme Court and Full Bench of this Court, that the Government formulated its language policy to be followed by Primary and High Schools regarding medium of instruction. The Government proceeded to pass the impugned order ....
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....e Supreme Court. However, the State Government on 19-6-1989 issued an order laying down its language policy pending the judgment of the Supreme Court. As per the said order, children from 1st to 4th Standards must compulsorily study only one language out of 8 languages (including Kannada and English) mentioned therein. Kannada has to be taught to the students who do not study Kannada as first language from 5th to 7th standards, but pass in Kannada language is not compulsory, and from 8 to 10th standard, out of three languages Kannada should be studied compulsorily as one of the subjects. Meanwhile the Government formed a Committee under the Chairmanship of Dr. H. Narasimhaiah, to enquire and report about the problems of unrecognized English Medium Schools and the question of English Medium at the Primary Stage. The Government as per orders dated 28-4-92 and 24-6-92 formulated its policy regarding medium of instruction in English medium schools after considering the report of the Committee and keeping in mind the temporary language policy published as per order dated 19-6-I989. It was directed by this order that approval (permission) could be given to those unauthorized Eng....
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.... Provision will be made to study III language from 5'h standard. The III language should not be language studied by the student as I or II language. Language which could be choosen by student as third language is indicated in schedule II. Attendance to the classes of III language and taking examination in III language is compulsory. Study of III language continues from 5th to 7th standard. But passing the examination in III language is not compulsory. Marks obtained in examinations in III language from 5th to 7th standards will not be taken into account for determining rank or class. d. Three languages will be taught in the High school stage, that is, in standards 8 to 10. The maximum marks for I language will be 125, for II language will be 100 and for III language will be 100. Pass in any two of the three languages is compulsory and out of these two languages, one should be Kannada. e. Standard of study of II and III languages at the end of 10th standard, should be equal to the stage of learning of these languages at the end of 6 years of study. f. Non-Kannada students and non-Hindi students should be given grace marks in examinati....
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....nment from time to time should be complied with. By order and in the name of Governor of Karnataka Sd/- K.M. Ponnappa Secretary to Government Education Department 71. Though the entire order was challenged by the petitioners initially, at the time of hearing, all the petitioners have filed a memo giving up their challenge against studying Kannada compulsorily as a language of study. 72. Even otherwise the legal position is now well settled. When Marathi, regional language of Maharashtra was made compulsory throughout the State, the said Governmental policy was challenged on the ground English Medium schools run by the Gujarathi linguistic minorities were compelled to teach four languages as against the accepted three language formula. Therefore, these linguistic minorities contended the said compulsion offends Articles 29(1) and 30(1) of the Constitution and the said Governmental policy is liable to be quashed. Repelling the said contention, the Supreme Court in the case of Usha Mehta and Ors. v. State of Maharashtra and Ors. (2004)6SCC264 held as under: The impugned policy decision was taken by keeping in view the larger interest of the State, because....
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.... the national integration of the country. It is in the paramount interest of the children living in that particular State and also in the larger interest of the country that they learn the language of the State. It helps those children in future and their economic future is also dependant on the learning of the language of the State. No child can say that he will not learn the language, in particular the regional language. The present day children when compared to the past generations are more capable, intelligent and are exposed too early to the World around them and, therefore, learning the regional language would not in any way be a strain at all. The learning of the regional language is necessary for peaceful co-existence of linguistic minorities with the majority of the population. A policy decision taken by the State to compulsorily teach a regional/official language of the State cannot be held to violate any constitutional provisions. Therefore, the petitioners rightly did not press the challenge against that portion of the impugned order. Therefore, the challenge in the writ petition is now confined to making mother tongue or Kannada as the medium of instruction in prima....
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....n for consideration is whether in the earlier proceedings referred to above the validity of mother tongue being the medium of instructions, was raised, whether it was contested and whether a decision was rendered, rendering the writ petitions not maintainable either on the ground of res judicata or on the principle of binding precedent. 76. By the Government order dated 20-7-1982, at the secondary school level, Kannada was made the sole first language to all students. The teaching of Kannada from 1st standard in non-Kannada schools was also prescribed. In pursuance of the said Government order, Director of Public Instructions issued a circular dated 11th August 1982 directing that, all the non-Kannada teaching Schools in the State should begin to teach Kannada language from 1st standard in the year 1982-83. It is this compulsion on linguistic minorities to teach Kannada from 1st standard, was the subject matter of the aforesaid proceedings. When this prescription was quashed by the Full Bench as offending the fundamental right conferred on linguistic minorities under Article 30(1) and 29 of the Constitution, the State preferred an appeal to the Supreme Court. During the pendency....
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....ar as the Government Order dated 19-6-1989, which was the subject matter before the Supreme Court. If the State was satisfied with the policy as contained in the Government Order dated 19-6-1989, when it is already upheld by the Apex Court, there was no necessity to have passed the impugned order dated 29-4-1994. It would have been superfluous. Though the relevant portion of the Government dated 19-6-1989, as extracted above, is retained with little elaboration, the petitioners are not aggrieved by the same. Though initially they challenged the said portion of the order as contained in Clause (1) they have filed a memo giving up the said challenge. They are primarily aggrieved by the other clauses such as Clause (2) (3) (6) and (8), which are extracted as hereunder: 2. The medium of instruction should be mother tongue or Kannada, with effect from the academic year 1994-95 in all Government recognized schools in classes 1 to 4. 3. The students admitted to 1st standard with effect from the academic year 94-95, should be taught in mother tongue or Kannada medium. 6. Permission can be granted to only students whose mother tongue is English, to study in Englis....
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.... an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar decision must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The Court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Article 38(2) of the Constitution. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. One of the chief reasons for the doctrine of precedent is that a matter tha....
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....er Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. 84. The Supreme Court in case of the State Financial Corporation and Anr. v. Jagadamba Oil Mills and Anr. [2002]1SCR621 held has under: 19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statues. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. 21. Circumstantial flexibility, on....
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.... Court in T.M.A. Pai Foundation will, therefore, have to be construed or to be interpreted on the aforementioned principles. The Court cannot read some sentences from here and there to find out the intent and purport of the decision by not only considering what has been said therein but the text and context in which it was said. For the said purpose the Court may also consider the constitutional or relevant statutory provisions vis-a-vis its earlier decisions on which reliance has been placed. 87. The Supreme Court in the case of Divisional Controller, KSRTC v. Mahadeva Shetty and Anr. AIR2003SC4172 held as under: The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given ....
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....f the Statute. Judgments of Courts are not to be construed as Statues. Precedents sub silentio and without argument are of no moment. Mere casual expression carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as a cathedra statement having the weight of authority. Pronouncements of law, which are not part of the ratio decidendi are distinguished as Obiter Dicta and are not authorisation. Viewed from this angle, the summary of conclusions or the suggestions made in the earlier decisions cannot be construed as a ratio decidendi. Similarly, the observations made by the Supreme Court in affirming the said judgment with reference to matters which did not arise for consideration in the said case also would not constitute a ratio decidendi. It is also to be borne in mind that so far as Constitutional matters are concerned, it is the practice of the Supreme Court not to make any pronouncements on points nor directly raised for decision. 89. The answers to the questions are merely conclusions. The answer to the question would necessarily have to be read in the context of what is set out in judgment and not in isolation. They have to be interpr....
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....in the aforesaid proceedings on the said point. The casual expressions, observations, conclusions and the suggestions made in the earlier Full Bench judgment cannot be construed as a ratio decidendi, especially in constitutional matters, as the said question did not arise for consideration in the said case. Therefore the contention that the question involved in this Writ Petition are squarely covered by the earlier decisions of this Court and Apex Court is without any substance and accordingly it is rejected. Constitutional Issues: Right to Choose A medium of Instruction- is It a Fundamental Right? 91. The deck is clear. The question whether the medium of instruction is a fundamental right is not decided in the earlier proceedings. The said question has arisen for consideration for the first time before this Court. The said question is posed before us in three dimensions. They are: (1) Is right to choose a medium of instruction a fundamental right? (2) Whether parents and children have the right to choose the medium of instruction? (3) Whether every citizen, a religious denomination and a linguistic or religious minority has a right to establish ....
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....h was constituted by the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka AIR2003SC355 for authoritatively pronouncing upon the scope and ambit of Articles 19(1)(g), 26, 29 and 30 of the Constitution of India. The Supreme Court reviewed the entire case law on the point and took note of, in particular, the earlier judgment of the Supreme Court, in respect of Kerala Education Bill where on a presidential reference the Supreme Court was called upon to give its opinion. They also took note of the judgments rendered in the State of Bombay v. Bombay Education Society [1955]1SCR568 in Siddarajabhai Sabbaj v. State of Bombay AIR 1963 SC 540 D.A.V. College v. State of Punjab AIR1971SC1737 Ahmedabad St. Xaviers College Society v. State of Gujarat [1975]1SCR173 in Indra Sawhney v. Union of India AIR1993SC477 in S.T. Stephen's College v. University of Delhi AIR1992SC1630 in Unni Krishnan J.P v. State of Andhra Pradesh [1993]1SCR594 and other host of cases and they laid down the law on the point In this context, as the judgment of this larger bench is the law of the land and covers the scope of the aforesaid articles at length it is wholly unnecessary for us to refer to the earl....
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....tablish and maintain institutions for religious and charitable purpose. There is no dispute that the establishment of an educational institution comes within the meaning of the expression charitable purpose. Article 26 does not deal with the right of an individual, but is confined to a religious denomination. Article 26 refers to a denomination of any religion, whether it is majority or a minority religion. Just as Article 25 refers to all persons, whether they belong to majority or a minority religion. Article 26 give the right to majority religious denomination, to exercise the rights contained therein. Article 29 and 30 are the group of articles relating to cultural and educational rights. Article 29(1) gives the right to any section of the citizens residing in India or any part thereof and having a distinct language script or culture of its own the right to conserve the same. Article 29(1) does not refer to any religion, even though the marginal note of the Article mentions the interest of the minorities. Article 29(1) essentially refers to sections of citizen who have a distinct language, script or culture, even though their religion may not be the same. The common th....
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....ight of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. The Government can provide regulations that will ensure excellence in education. In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged. The standards of education can be and are controllable through the regulations relating to recognition, affiliation and common final examinations. Reputation of educational institution is established by the quality of its faculty and students and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies". "Once the aid is granted to a private professional educational institution, the government or the Stage agency, as a condition of the grant of aid can put fetters on the freedom in....
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.... could seek or retain affiliation and recognition. 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. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This in our view is the correct approach to the problem. We agree with the contention of the learned Solicitor General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other parts of the Constitution. We find it difficult to accept that in the establishment and administration of educat....
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....ewly emerging problems and challenges. The Constitution of India, is an organic document. It should be interpreted in the light of the experience. It has to be flexible and dynamic so that it adapts itself to the changing conditions. The fundamental rights are an essential feature of the Constitution. They are the bedrock upon which the constitution is built. By and large, they are the extensions, combinations or permutations of the natural rights of life, liberty and equality possessed by an individual. The fundamental rights enshrined in the Constitution such as, right to equality and freedom have no fixed contents. Most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the fundamental rights. From time to time, the Supreme Court has filled in the skeleton with soul and blood and made it vibrant. The Constitution is required to be kept young, energetic and alive. Since last more than 50 years, the Supreme Court has interpreted Articles, 14, 19, 21 and given meaning, colour, and odour to these basic rights which a citizen possess by birth. 96. The Supreme....
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....of human rights jurisprudence. Several un-enumerated rights fall within the ambit of Article 21 since personal liberty is of widest amplitude. They are, right to go abroad, right to privacy, right against solitary confinement, right against bar fetters, right to legal aid, right to speedy trial, right against handcuffing, right against delayed execution, right against custodial violence, right against public hanging, Doctor's Assistance, Shelter, right to means of livelihood, right to health, right to pollution-free environment and so on. 99. In the case of Bandhua Mukti Morcha v. Union of India [1984]2SCR67 Bhagwati, J. while affirming the proposition that Article 21 must be construed in the light of the Directive Principles of the State Policy, the Supreme Court observed that this right to live with human dignity enshrined in Article 21 derives its life breath from Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 at the least, therefore, it must include protection of the health and strength of workers, men and women and of the tender age of children against abuse, opportunities and facilities of children to deve....
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....ment passing Eighty Sixth amendment introducing Article 21 -A expressly conferring the fundamental right on all children of the age of six to fourteen years free and compulsory education. Thus, right to education is a fundamental right which is implicit in right to life under Article 21 of the Constitution Every citizen has the right to education under the Constitution. The State is under an obligation to establish educational institutions to enable the citizen to enjoy the said right. The State may discharge its obligation through State owned or State recognised educational institution. When the State Government grants recognition to the private educational institution, it creates an agency fulfilling its obligation under the Constitution. The students are given admission to the educational institutions whether State owned or State recognised, in recognition of their right to education under the Constitution. The right to primary education is a fundamental right under Article 21-A of the Constitution. 102. The opening words of Article 19 of the Constitution refers to rights regarding freedom of speech. Article 19(1)(a) declares that all citizens shall have the right to freedom ....
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.... on the exercise of the said right. The State has been conferred power under the said Article to provide for free education in such a manner as the State may, by law, determine. If this Article 21-A is read with Article 19(1)(a) all children have the freedom to have primary education in a language of their choice as it is implicit in the right to freedom of speech and expression, the right to study or get instruction in a language of their choice. Therefore, the right to have primary education is a medium of instruction of their choice is enshrined in Article 19(1)(a) read with Article 21-A of the Constitution. As this right is conferred on all citizens under Article 19(1)(a), the said right is also that of the parents of the child, who are interested in educating their child and on whom a fundamental duty is cast under Article 51-A(k), which provides that it shall be the duty of every citizen of India, who is a parent or guardian to provide opportunities for education to his child between the age of six and fourteen years. Both these Articles, i.e., 21-A and 51-A(k) were introduced by way of Eighty sixth amendment to the Constitution in the year 2002, conferring a right on the chi....
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....ht to establish and administer an educational institution. This right is also conferred on both, the majority and minority. It is purely an educational right. However, after conferring the aforesaid fundamental right on the minority community also, the Constitution makers thought of expressly providing on all minorities the right to establish and administer educational institution of their choice, under Article 30(1) of the Constitution which they have not expressly conferred on either linguistic or religious majority. Article 30(1) confers on all minorities, whether based on religion or language, a fundamental right to establish and administer educational institution of their choice. The minority referred to in Article 30(1) is not only a religious minority but it is a minority based on religion or language. Whereas, the right conferred under Article 26(a) is exclusively on religious denomination which includes a religious minority. 108. Article 29(1) applies to any section of the citizens. In other words, it applies to majority and minority, that is, to all citizens. All of them have a fundamental right to protect their language, script or culture and conserve the same. Articl....
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....uistic and religious minorities. The said right is absolute. 110. The right under Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. Though the right flowing under Article 30(1) is held to be absolute, the Apex Court has read into this Article the concept of the said right being subject to a regulation protecting national interest. Any regulation framed in the national interest must necessarily apply to all educational institutions whether run by the majority or the minority. The right under Article 30(1) cannot over-ride national interest or prevent the Government from framing regulations in that behalf. However, the only limitation on the power of the Government while framing regulation is, that it cannot destroy the minority character of the institution or make the right to establish and administer, a mere illusion. The regulation so framed must satisfy the dual test. The test of reasonableness and the test that it is regulative of the educational character of the institution. The object of the said regulation should be to achieve excellence of standard of education and check mal-administration. If it is a restriction and nega....
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....1)(a)(g), 21, 26, 29(1) and 3030(1) of the Constitution. 113. The Supreme Court in the case of State of Bombay v. Bombay Education Society (Supra) held as under: Where, however, a minority like 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 their choice under Article 30(1), surely then there must be implicit in such fundamental right, the right to impart instruction in their own institutions to the children of their own community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30(1) of the greater parts of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it. (underlining by us) 114. Again the Supreme Court in D.A.V. College v. State of Punjab (Supra) in which the resolution of the Senate Sub-Committee of the Punjab making Pu....
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....io decidendi or a precedent, at best, it could be obiter dicta. Even the obiter dicta requires attention and consideration. Therefore, let us see what the Full Bench has stated about the mother tongue being the medium of instructions. 117. The State relies on paragraph 26 of the judgment in the case of General Secretary, Linguistic Minorities Protection Committee And Anr. Etc. v. State of Karnataka and Anr. AIR 1989 KAR 226 which reads as follows: 26. Thus, we can see that there is complete unanimity on the topic of primary education. The opinion is that the children must be provided with facility to have their primary education in their mother tongue. As stated earlier, the State Reorganisation Commission attached great importance to this aspect of the matter in the context of establishment of linguistic states and it was firmly of the opinion that a constitutional duty must be cast upon each of the linguistic states to take steps for providing primary education in mother tongue. It is in the light of this recommendation, Article 350-A was incorporated into the Constitution, which casts an obligation not only on each of the State Governments but also on each of the Loc....
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.... language though it is not always necessary to do so. As pointed out while considering the matter with reference to Article 14 the Choice must be of the student. In most of the cases, students prefer to take the language which is adopted as the medium of instruction as also the first language for, the study of a language as the principal language would be of great advantage for acquiring knowledge in other subjects. It would be incongruous to say that a linguistic minority's choice for medium of instruction is absolute but the choice of first language is not. If as ruled by the Supreme Court in Bombay Education Society AIR 1954 SC 561, and in DAV College AIR 1971 SC 1731 the State cannot compel the educational institution established by a linguistic minority to adopt a language prescribed by the Government as medium of instruction and the choice of the management concerned should prevail, it follows that the minority educational institution or the students studying in those institutions must have the option to select the first language. For illustration, if a High School is established by the linguistic groups belonging to Marathi, Urdu, Tamil or Telugu languages in this State ....
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....gh the decision of this Court in Bapuji Education Society's case is pending consideration before the Division Bench in appeal, I am inclined to accept the ruling of this Court on this point for holding that Societies which are engaged in promoting education are entitled to protection under Article 19(1)(g) of the Constitution and their rights could be curtailed by reasonable restrictions in public interest under the provisions of Article 19(2)(6) of the Constitution. The imposition of Kannada as the sole medium of instruction cannot be said to be in the interest of the general public and has no nexus to public interest. In the circumstances, the petitioners are entitled to the protection under Article 19(1)(g) of the Constitution. I will go further and hold that the impugned orders and the policy decision of the State Government are violative of Article 19(1)(a) of the Constitution as the medium of instruction is one aspect of freedom of speech and expression and I do not know of my law which can say that a student should express himself in a particular regional language not in English if he has the inclination to study the curriculum in English in addition to English as the II....
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....e use of English or any other language as a medium of instruction and examination and Statutes 207 to 209 are therefore, null and void. It cannot be denied, though the American decisions may not be a guide to the interpretation of the provisions of Part III of the Constitution, that the petitioner is entitled as a parent to direct and education of his son in the manner he considers best suited and to guide thereby his future prospects. The State has no concern and we hope, no right to direct him to do so in a particular manner. That can only happen in countries which do not boast of democratic Constitutions. Though such a right may not arise from a Statute or a contract, he is entitled and has the liberty in law to educate his son in the manner he thinks best. The decision of the Gujarat High Court was challenged in the Supreme Court and the Supreme Court dismissed the appeal preferred by the Gujarat University. 122. A careful reading of the counter filed by the State as well as the arguments canvassed at the time of arguments by all the learned Counsel on behalf of the respondents, clearly indicates that they do not dispute the fact that the choice of medium of inst....
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....ad with Article 29(1) would include the right to have choice of medium of instruction in imparting education. The medium of instruction is to be entirely the choice of the management concerned. Therefore we declare that the right to choose a medium of instruction of their choice is a fundamental right under Article 19(1)(a)(g), 21, 26, 29(1) and 30(1) of the Constitution of India. Parental right 125. The next question is, what is the right or role of the parent in choosing the medium of instruction for their child. (sic) (Mathru Devo Bhava; Pithru Devo Bhava;) is the underlining principle which represents the ethos and the culture of this country, of which all of us are proud of. As a corollary to that, the parents sacrifice their personal interest in life for the welfare of their children, especially in educating them. Probably it is only in this country the parents educate their children, through out, and spend from their pockets the cost of entire education, if need be by raising loans, or selling their properties. Today without any compulsion, by law slowly in urban areas, educated people are adopting a single or two child norms. The care and time spent on their children,....
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....ree. They would like to have freedom or choice of educating their children, in a manner which is most suited to their children. In those circumstances, it is unfair on the part of the government to impose its will on the parents and children in selecting the medium of instructions at the primary level. If the government has no power and competence to impose mother tongue as the medium of instructions on the students at higher level, equally it has no power to impose its will even in respect of primary education, merely because the experts opine that the mother tongue is best suited for child's education at primary level. 126. This parental right has been the subject matter of several decisions including the Apex Court. The Supreme Court in the case of St. Xavier's College v. State of Gujarat [1975]1SCR173 has held as under: 141. The fundamental postulate of personal liberty excludes any power of the State to standardize and socialize its children by forcing them to attend public schools only. A child is not a mere creature of the State. Those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for addi....
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....lier, it is the unanimous opinion of all the Commissions, Conference including Dr. Gokak Committee that it should be in mother tongue. In the case of Government or Government aided institution also the opinion is that if requisite number of students belonging to any linguistic group get admitted, provision has to be made for imparting primary education in mother tongue. Further, from the observation of the Supreme Court in the case of St. Xavier's College (AIR 1974 SC 1389) extracted earlier, it may be seen that the parents have the right to decide as to whether their children should secure primary education in the mother tongue or not. The State cannot step in and arrogate to itself the power to decide as to the language in which the children should have their primary education. 128. The Full Bench of the Madras High court in the case of Tamilnadu Tamil & English Schools Association v. State of Tamilnadu and Ors. 2002-2-LW.319 has held as under: 74. The parents on behalf of the children can call upon the State to provide the education upto 14 years. Such education has to be given to shape the children to face the challenges and cater to the needs of a changing soci....
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....des as under: Article 26(1) is to the effect that every one has the right to education. Article 26(2) is to the effect that education shall be directed to the full development of human personality and for strengthening of respect for human rights and fundamental freedoms. Article 26(3) lays down that the parents have the right to choose the kind of education that shall be given to their children. Article 10 of the European Convention on Human Rights which inter alia states as follows: 10.1. Everyone has the rights to freedom of expression. This right shall include freedom to hold opinion and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Article 19(1) and (2) of the International Covenant of Civil and Political Rights, reads as under: (1) Everyone shall have the right to hold opinions without interference; (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other me....
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....d or, as the case may be, ward between the age of six and fourteen years. 132. Smt. Hemalatha Mahishi contended that, in the National Charter for Children, 2003, the Government of India has reiterated its commitment to the cause of the children in order to see that no child remains hungry, illiterate or sick. Dealing with free and compulsory primary education the following has been adopted: 17. Strengthening family: (a) Every child has a right to a family. In case of separation of child from their families, the state shall ensure that priority is given to re-unifying the child with its parents. Incases where the state perceives adverse impact of such a re-unification, the state shall make alternate arrangements immediately, keeping in mind the best interests and the views of the child. (b) All children have a right to maintain contact with their families, even when they are within the custody of the State for various reasons. (c) The State shall undertake measures to ensure that children without families are either placed for adoption, preferably intra,-country adoption, or foster care or any other family substitute services. (d) the ....
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.... of speech and expression. Therefore, it is open to a group of people to insist on the mother tongue being made the medium of instruction. It is their constitutional right and they are free to express themselves in a manner befitting to them. The government is bound to hear them and take into consideration their views. That is how public opinion is built in a Democratic society. That is a democratic way of life. Similarly the views of the parents and other sections of the society also requires consideration and deserves respect. Though in a democracy, the majority counts, no count is taken to find out who constitutes the majority. Above all even if the government on consideration of the various facets of public opinion, formulates a policy decision and tries to implement the same, it has to be in accordance with the law of the land. That is the Rule of law, as no government is above law and they are also subjected to the rule of law. The said Government policy cannot impinge the fundamental rights of a citizen. A vocal section of the public cannot undermine and trample with the fundamental rights of a silent majority. That is the constitutional guarantee in a democratic set up. It ....
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....t to establish and maintain institutions for charitable purposes which includes education. Article 19(1)(g) confers on every citizen of this country a fundamental right to carry on any occupation which includes imparting education by establishing an educational institution of their choice. Article 29(1) confers on any section of the citizen residing in this country having a distinct language, script or culture, of its own shall have the fundamental right to conserve the same by establishing and administering an educational institution. Thus a right to establish and administer an educational institution of their choice (including the choice of medium of instruction) is a fundamental right that has been enshrined in the Constitution on every citizen, a religious denomination and a linguistic or a religious minority and the authoritative pronouncement of the Supreme Court in T.M.A. Pai's case puts an end to the said controversy. Judicial Review of Governmental Policy 137. It was contended that Article 350-A defines the policy of the Government. While giving effect to the said policy, the executive passes an order, the same cannot be the subject matter of judicial review and ....
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....nd the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. By means of judicial review, the Court restrains unconstitutional exercise of power by the legislative and executive. Judicial restraint is, however, the only check on exercise of such judicial power. While exercising the power of judicial review of administrative action, the Court does not act as an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy so long such authority does not transgress its constitutional limits or statutory powers. Matters of policy are certainly for the legislature to consider. Where the function of the legislature ends, the function of judiciary begins. To pronounce upon the constitutional law is not legislating. In the course of judicial review of the actions of the constitutional authority, the Court cannot really substitute a decision reached by a fair procedure by a different decision only on the ground that the decision which appeals to the Court is a better one. Judicial review is not concerned with the decision, but with the decision making process. Generally, the Courts do not ....
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....l rights such as freedom of speech, religion, etc. We observed that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly the in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the following admonition given by Frankfurter J. in Morey v. Doud (1957) 354 US 457: In the utilities, tax and economic regulation cases there are good reasons for judicial self-restraint if not judicial deference to legislative judgment, The legislature after all has the affirmative responsibility, The Courts have only the power to destroy, nor to reconstruct, When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events-self-limitation can be seen, to be the path to judicial wisdom and institutional prestige and stability. ......
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....his Court, in no uncertain terms, has sounded a note of caution by indicating that policy decision is in the domain of the executive authority of the State and Court should not embark on the unchartered ocean of the public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The supremacy of each of the three organs of the State that is, the legislature, executive and judiciary in their respective fields of operation needs to be emphasised. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional schemes so that there may not be any occasion to entertain misgivings about the role of judiciary in out stepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set up to which the policy is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields. 147. In the case of Narmada Bachao Andolan v. Union of India AIR2000SC3751 the Supreme Court observed as under: ....
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....judiciary in overstepping its limits. 150. The policy is essentially for the State to formulate keeping in mind the need and requirements of the people and society at large. The State should be allowed some play in the joints because it has to deal with complex problems, which do not admit of solution through any doctrinaire or strait-jacket formula. This is particularly in case of policy dealing with economic matters. The policy relating to economic activities should be viewed with greater latitude than the policy touching civil rights such as freedom of speech, religion, etc., Therefore in exercise of its power of judicial review the Court should not transgress the field of policy decision. The Court, no doubt, has a duty to ensure that while taking a policy decision, there is no violation of the law by the Government and citizen's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. 151. If the Government policy impinges upon or violates any fundamental rights guaranteed to the citizens of the Country or is contrary to any statutory provisions or which is opposed to principles of natural justice or actuated with malafide....
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.... is guaranteed, they secure the proper functioning of the institutions, in matter educational. 155. In the case of Ahmedabad St. Xaviers College Society and Anr. Etc., v. State of Gujarat and Anr. AIR 1974 SC 1384 the Supreme Court has observed as under: In considering the question whether a regulation imposing a condition subserves the purpose for which recognition or affiliation is granted, it is necessary to have regard to what regulation the appropriate authority may make and impose in respect of an educational institution established and administered by a religious minority and receiving no recognition or aid. Such an institution will, of course, be subject to the general laws of the land like the law of taxation, law relating to sanitation, transfer of property, or registration of documents etc., because they are laws affecting not only educational institutions established by religious minorities but also all other persons and institutions. It cannot be said that by these general laws, the State in any way takes away or abridges the right guaranteed under Article 30(1). Because Article 30(1) is couched in absolute terms, it does not follow that the right guarantee....
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....n established and administered by a religious or linguistic minority can claim recognition or affiliation without submitting to those regulations. That is the price of recognition or affiliation: but this does not mean that it should submit to a regulation stipulating for surrender of a right or freedom guaranteed by the Constitution, which is unrelated to the purpose of recognition or affiliation. In other words, recognition or affiliation is a facility which the university grants to an educational institution, for the purpose of enabling the students there to sit for an examination to be conducted by the university in the prescribed subjects and to obtain the degree conferred by the university, and therefore, it stands to reason to hold that no regulation which in unrelated to the purpose can be imposed. If, besides recognition or affiliation, an educational institution conducted by a religious minority is granted aid, further regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from the reg....
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....n effective vehicle of education for the minority community or other persons who resort to it. 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. 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. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This in our view is the correct approach to the problem. 158. In this context reliance was placed on the provisions of the Karnataka Education Act, 1983. Clause 25 defines Primary Education which reads as under: 25. "primary education" means education in and upto such classes and standards as are prescribed under this Act. 159. Section 7 deals with the power of the Government prescribing curricula, etc., as well as the medium of instruction which reads as under 7 ....
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....ii) An English medium school or class may be permitted to be started subject to the condition that the minimum strength of each Standard is 10 or 30 for standards I to IV taken together. For standards V to VII the minimum strength shall be 10 per standard 162. The language of Rule 12(1) is not peremptory. Rule 12(1) and (2) contains the policy of the Government to impart primary education in mother tongue. In majority of cases it happens that the regional language, i.e. Kannada, the prescription is that primary education should be in regional or mother tongue. However, it is not peremptory. It is in the nature of a guidance and expects that ordinarily the medium of instruction shall be in the regional language or mother tongue. It is also in consonance with Article 350-A of the Constitution of India. The way the said rule is worded there is no compulsion. It is the regulation framed under Article 162 of the Constitution by the State to regulate the primary education in the State of Karnataka. Therefore, the provisions of the Code are to be read as regulatory measures. In case of this provision goes beyond its limitation and purports to effect the exercise of fundamental right, a....
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.... it would be violative of fundamental right. The legislature has not expressly conferred such power. We cannot by implication confer such power. It is well settled that all these provisions have to be interpreted keeping in mind the fundamental rights guaranteed to the citizens of this Country and if two interpretations are possible, it is that interpretation which would advance the cause of justice and avoid the legislative Act being declared as unconstitutional is to be preferred. A harmonious interpretation would indicate that the State has been conferred the power to specify medium of instruction in primary school so as not to offend the fundamental right guaranteed under the Constitution. That would meet the ends of justice. 165. From the foregoing, it is clear that the power of the State to make regulations regulating the fundamental rights cannot be disputed. Regulations secure the proper functioning of the institution in matters of education. The Regulation polishes the right so that there will be proper and smooth exercise of the right in the interest of very person exercising the fundamental rights. Such Regulations are not restrictions of the substance of right which ....
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....en infringed, the law can be saved from constitutional invalidity only if it falls under any of the exceptions enumerated in Clauses (2) to (6) of Article 19. In order to be valid, the restrictions must satisfy with the conditions stipulated in the very provisions. They are: (a) It must be by law; (b) such law must be made by the State; (c) such law must be valid; (d) restrictions imposed by law must be reasonable; and (e) the restrictions must be proximately related to any of the grounds specified in the limitation in Clauses (2) to (6), relevant to the fundamental right in question. Restrictive clauses in Clauses (2) to (6) are exhaustive and therefore are to be strictly construed. Not only should the restriction, in order to be valid, relate to any of the grounds mentioned in the relevant limitation clause, but the relationship between the impugned legislation and any of the relevant specific grounds, must be rational or proximate. If the restriction imposed would not fall within any of those grounds, then, those restrictions should yield to the rights conferred under Article 19. 168. Aright under Article 19(a) can be curtailed by making a law imposing reasonable restriction ....
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....e entire argument of the State based on the said observation has to fail. 170. One of the reasons for the constitution of Dr. H. Narasimhaih Committee was to find a remedy for the problems created by the un-recognized English primary schools. The problem was, taking advantage of the scarcity of English medium schools as compared to the demand, the management of these English primary schools were collecting huge donations and also fees and the said schools have become "Business Centers". In other words, they were holding the people to ransom. The remedy to the said problem does not lie in holding the parents to ransom. It lies elsewhere. The power of the State should be utilized in regulating this menace. The State has the power, as held by the aforesaid judgments of the Apex Court and in particular the decision in T.M.A Pai's case, to pass regulation prescribing a fee structure, on the basis of the principles enunciated therein. Non granting of permission to start an English medium school or asking the existing schools to convert into Kannada medium schools or on failure to do so, to close down the schools, is not a remedy to the problem. The remedy is worse than the disease....
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.... people of a country together - which has welded this country into a nation. XXX XXX XXX ...We find that today the integrity of the nation is threatened by the divisive forces of regionalism, linguism and communalism and regional, linguistic and communal loyalties are gaining ascendancy in national life and seeking to tear apart and destroy national integrity. We tend to forget that India is one nation and we are all Indians first and Indians last. It is time we remind ourselves what the great visionary and builder of modern India, Jawaharlal Nehru said. :Who dies if India lives: who lives if India dies? "We must realise, and this is unfortunately that many in public life tend to overlook, sometimes out of ignorance of the forces of history and sometimes deliberately with a view to promoting their self-interest, that national interest must inevitably and for ever prevail over any other considerations proceeding from regional, linguistic or communal attachments. This is precisely the reason we find from the debates of the Constituent Assembly, medium of instruction in mother tongue at primary level of education was not introduced in the constitution in the funda....
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....was the language through which the modern education system was operated in this country for more than a century. After independence also, English continued its dominance in all walks of life including education. The Indian Constitution itself is drafted in English. It recognised English language as an Associate Language. 175. Article 343 of the Constitution dealt with the official language of the union. It declared that the official language of the Union shall be Hindi in Devanagiri script. Sub-clause (2) of Article 343 made, it clear that notwithstanding anything in Clause (1) for a period of 15 years from the commencement of the Constitution, the English Language shall continue to be used for all official purposes of the union for which it was being used immediately before such commencement. Sub-clause (3) of Article 343 provided that Parliament was empowered to make law providing for the use of English language after the period of 15 years. Article 344 provided for Constitution of a Committee of Parliament on official language and one of the terms of the reference to the committee was to recommend regarding the restriction of the use of English language for all or any of the ....
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....Gandhi on English language: It has become a fashion to blame the Englishmen for all our ills. I have not hesitated to blame them for many things they have done. I have never charged them with compelling us to adopt English as the medium of expression. Let it be known that I am a lover of the English language and the English. But my love is wise and intelligent. Therefore, I give both the place they deserve. Thus, I do not allow the English language to displace the mother tongue or the natural all-India language-Hindustani. Nor do I let my love of the English displace my fellow-countrymen whose interest I can in no way allow to be injured. I recognize the great importance of the English language for international intercourse. I hold its knowledge as a second language to be indispensable for specified Indians, who have to represent the country's interest in the international domain. I regard the English language as an open window for peeping into western thought and sciences. 178. In the report of the language committee (Dr. Gokak Committee) in so far as English is concerned it has been stated as under: No ancient language is so prominent as that of ....
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....to admit their children to English Medium Primary Schools. In 1991, there was about 500 English Medium Primary Schools catering to the requirements of the public at large which were not recognised by the State, because of the policy of the State in granting recognition to English Medium Primary Schools. Taking advantage of the situation, the recognised English Medium Primary Schools which were demanding high admission fee and other fee were exploiting the gullible parents. It is in this background the said committee was constituted to make its recommendation. That was the position about 15 years ago. Today the said problem has reached gigantic propositions. The number of English medium schools have multiplied many times, so also the students opting for English medium school. The demand for English medium schools is ever increasing, the fact which, one cannot ignore. Impact of English on Kannada 180. Kamataka's historical heritage is more than two thousand years old. During this period, the history of this land has been glorified by the profuse and rich growth of its language, literature, art and culture. Though interwoven with the Indian culture, Kannada has got its own i....
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....e area. The contact with English literature opened up new ideas and modes of expression, providing the necessary stimulus for innovation and experimentation in both Kannada language and literature. A modern style both in prose and poetry, came to be favoured in place of the heavier and traditional structure. Just as the form changed, so too did the content. The poets and novelists became concerned with the emerging social and political drama of their times rather than the puranas and epics which had engaged the attention of the poets in the past. The rich harvest of European literature of the 19th century had considerable influence on the evolution of Kannada literature. Karnataka, achieved its renaissance when it felt the impact of alien traditions that were in turn synthesized and adapted to her native mould. It is said the renaissance of Kannada literature started in the later part of 19th century. In the quarter of a century from 1920 Kannada reaped a rich harvest; the preparation for it had taken half a century. Kannada literature has evolved into being one of the foremost literatures of India today. We see in this evolution from classical to contemporary themes the same gift ....
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....he resurgent literary spirit of Kannada manifested itself in the second decade of the 20th century in different parts of Karnataka. Experimentation was in the very air, and, while the writers were proud of their mighty predecessors like Pampa, Ranna, Kumaravyasa, Raghavanka, Lakshmisha and Harihara, they borrowed new literary forms from the west and made them their own. This great literary heritage of Karnataka was continued by writers of the modern age like Gundappa, Masti, Bendre, Kuvempu, Karanth, and a host of others who have enriched Kananda literature and made great contributions to world literature. Sri B M Srikantaiah's translation of English lyrics into Kannada (English Geethegalu) and a Christian hymn by John Henry Newman "Lead Kindly Light" which translated as "Karunalu Baa Belake", in 1921 is to this day one of the most popular songs in the language and is sung as if it were an original Kannada composition. This is generally regarded as announcing the birth of the New Age. It triggered the renaissance in Kannada literature. It was fortunate that, in this period of tremendous enthusiasm and confidence, Karnataka had the talent to match. During this period in all form....
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....ficial Language Act, 1963. The State administration should be in Kannada language. Kannada language should reign supreme in Karnataka. Kannada language should have pre-eminence over all other languages. In order to achieve this object the Government's writ should run, first in the Vidhana Soudha and thereafter in all Government offices throughout the length and breadth of Karnataka. All the laws of the land should be translated to Kannada language and made available to people at reasonable cost. The State should shoulder the responsibility of getting printed the literary works of great Kannada writers and make it available to the people at subsidized rates and thus encourage Kannadigas to read Kannada literature. Aid is to be extended liberally to Kannada organizations which are striving for the development of Kannada language and its literature. At the earliest translation of scientific, technological, legal and other works in English to Kannada language is to be undertaken. Create an atmosphere where Kannada language, literature and culture would flourish to its full potential, not by compulsion but by voluntary participation which is the hallmark of Kannadigas. What is requi....
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....struction at primary level is to be understood in the said context. It is also to be noticed that when they gave vent to their feelings, they were all young, surcharged with emotions, burning with a strong desire to free the country from the shackles of this foreign rule. The only aim and goal of all of them was to secure independence to this country. They had not given sufficient thought at that time about the nature of the Indian State, regarding a common language for the country, the problem of a multilingual state and the aspirations of the people belonging to these linguistic groups. After independence, the resolutions passed by the Provincial Education Ministers Conference of 1949 reiterated the demand for the introduction of mother tongue of the child as a medium of instruction at the primary level. The said demand was echoed in the constituent assembly during discussion preceding the drafting of the Indian Constitution. However, it did not find a place in the Constitution. There is no mention of primary education or mother tongue in any Article. However, there is a reference to education in Article 41, 45 and 46 of the constitution which falls within the ambit of directive ....
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....the Indian Constitution. He had a complete picture of the various provisions of the Constitution and the rights and obligations flowing therefrom. He knew what a fundamental right is and why they were introduced. Any provision introduced conceding the aforesaid demand would have run counter to the fundamental rights and would have negated those rights. Hence, consciously no provision was made in the Constitution to that effect. 189. Therefore, only in totalitarian regimes like Russia, China, Koria and Vietnam and previously a monarchy like Japan, they were able to implement this mother tongue as medium of instruction by brute force of the State. The additional factors which enabled them to do so was firstly they are anilingual States. Secondly, those countries were not under the control of Britishers for centuries and there was no influence of English language over their population. But in democracies, where personal liberties are guaranteed to its citizens, the state has only provided facilities for learning subjects in primary school in the medium of mother tongue and no where any compulsion was imposed to have primary education in mother tongue only. The choice is given to th....
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....al right is conferred on the child to have primary education. Though the child has a choice of medium of instruction it cannot compel the State to provide primary education in any particular language choosen by the child. The right is only to have free and compulsory primary education, in a language the state may by law determine. The law to be made by the state can only be with reference to the language to be choosen for medium of instruction. The powers of the state under that law cannot be extended to curtail the freedom of the child to have primary education in a language of its choice. By the law the State cannot compel the child to have primary education in the mother tongue only. When the child is not approaching the state to provide primary education, the State cannot dictate or compel the child to have primary education in mother tongue or regional language only. What cannot be done directly cannot be achieved by withholding or refusing recognition to establish and administer an educational institution of their choice, where the medium of instruction would be other than the mother tongue or the regional language of the state. 191. The Government has the power to formula....
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....imary education in the mother tongue or the official language of the State. The choice of medium of instruction is that of the child and it should be left to the parents of the child. It is the element of compulsion which is frowned upon. It is arbitrary. It offends fundamental right guaranteed to the citizens of this country. The golden thread which runs through the constitution is the concept of FREEDOM, which cannot be compromised to the protean concept of ''State necessity'', as conceived by the rulers of the day. Even the majority has no right to take away the said right guaranteed under Article 30(1) of the constitution to the linguistic minorities as it would subvert the very purpose for which the right was given. The Indian constitution is a living document for the present and future generation. The rights conferred therein are eternal. Except in the manner provided in the constitution and the law declared by the apex Court, the said rights cannot be abridged or denied. That is the constitutional guarantee promised to the citizens of this country. 194. As this country over the centuries has assimilated Persian, Arabic and other languages, this country has....
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.... school. It is a good decision in the right direction. 196. Freedom of individual development is the basis of democracy. The primary purpose of education is to provide him with the widest opportunity to develop his potentials to the full. Right to freedom of speech and expression is a right one gets by birth. It is a basic human right and a natural right. It is basic and indivisible from a democratic polity. It is implicit in such a right the right to choose the medium of instruction. 197. It would be apt to conclude this discussion with the observations found in the report submitted by University Education Commission having Dr. S. Radhakrishnan, as its chairman and nine other renowned educationists as its members which reads as under: All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from darkness of light, to free us from very kind of domination except that of a reason, is the aim of education. Inte....