TMI Blog2008 (7) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 widest opportunity to develop his potentialities to the full. This direct link b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 impugned Government orders, consequential orders were issued to several schools ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. Students Parents Association v. State of Karnataka AIR1994SC1702 , while upholding the majority view and declining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles 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 these cases. These cases are referred to the Constitution bench since they involve interpretation of the provisions of the Constitution. 9. It is, however, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 in the matter, holding that Article 32 of the Constitution cannot be a means to indicate policy preference. In the wake of the aforesaid order dated 8.12.1993, passed by the Hon'ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the future generation. They need to be decided through public debate. 20. After a counter was filed, the petitioner filed a rejoinder pleading additional facts and pointing out that the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Article 30( 1) of the Constitution of India confers a fundamental right to establish and administer educational institution of their choice, the word their choice includes the right to choos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 from standards 1 to 4. It pointed out that all the experts are unanimous in their opinion that children should begin their schooling through the medium of mother tongue and that there is grea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specifically contended, that in formulating the policy, the Government is guided not only by the opinion of the academicians, experts, literary figures and educationists but also the ruling of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table 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 violative of Article 29(2) of the Constitution which frowns upon denial of admission to a citizen to any educational institution maintained by the State or receiving aid out of state funds on the ground of language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, the majority also possess. No constitutional provision is violated. Since it is a matter of policy, the Courts cannot interfere. Government may evolve a new policy taking into consideration the new circumstances and the development. 31. Professor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of choice to mother tongue or regional language only?. 34. The answer to these intricate questions covers various components such as the opinion of experts in the educational field, opinion of statesmen, legal and constitutional issues, concept of rights, in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongue 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 a foreign medium, and require all the teachers and professors on pain of dismissal to introduce the change forthwith. I would not wait for the preparation of text-books. They will follow the change. It is an evil that needs a summary remedy. The Noble Laureate Sri Rabindra Nath Tagore had e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 translate it into action. The students and their parents should be convinced of the necessity and benefits of Kannada as the medium of instruction at the University level. Proficiency in English should be attained by studying it as a language. They should realise the tragic fact that if English is retained as the mediu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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, resolutions world over are as under: In the Education Today Newsletter July-September, 2003 - the mother tongue dilemma, it is stated as under: (a) The mother-tongue dilemma: Studies show that we learn better in our mother tongue. But then it has to be taught in school, which is not the case of all minority languages. Teacher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NESCO 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, languages are now regarded as an integral part of a people's identity, as shown in the UNESCO Universal Declaration on Cultural Diversity (2001), which recognizes the importance of languages in promoting cultural diversity. But the technical issues of how to teach them are involved too. The main thing is to respect local languages and legitimize them within the school system as well as giving pupils access t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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, facilitating the acquisition of the language that will become the medium of instruction for the rest of the school years. Papua New Guinea (PNG) has over 830 languages, and at least 434 local languages are used for initial instruction in schools. Popular demand for the use of local languages is spearheaded a remarkable reform story that has had broader implications for the primary school system. In the late 1970s and early 1980s village vernacular schools were introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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: The most important conclusion from the research and experienced reviewed in this paper is that when learning is the goal, including that of a second language, the child's first language (i.e., his or her mother tongue) should be used as the medium of instruction in the early years of schooling.... The first language is essential for the initial teaching of reading, and for comprehension of subject mater. It is necessary foundation for cognitive development upon which acquisition of the second language is based: Mehrota. S. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition 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 mother-tongue medium. India is no exception to this worldwide movement. Constitution of India in Article 350-A stresses the importance of giving instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups. Many states in India have already adopted this policy and are trying to introduce mother-tongue as the medium of instruction in the primary classes. The Indian languages are struggling to survive against the onslaught of English language and now they are trying to establish their legitimate place in the education system of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 English. The native languages were relegated to the background. The fight for freedom not only was directed against the English men, the Rulers, but also against their language i.e., English. After independence, there was no single Indian language which could replace English, as language of the country. The provinces as they existed on the date of independence, had a large mix of people speaking different languages, though one single language was dominant in that province. There was a demand for switching over to the regional language in education. In that context it was not possible to force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laces 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 August 1948, which contains the following passage. The principle that a child should be instructed in the early stage of its education through the medium of the mother tongue has been accepted by the Government. All educationists agree that any departure from the principle is bound to be harmful to the child and therefore to the interest of the society. The Government of India is of the opinion that in the larger interest of the country, it is desirable that the policy enunciated above should be followed by all Provinces and State Governments. 46. Therefore, according to this very resolution it is accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 making territorial changes. The Indian National Congress accepted in 1920 linguistic redistribution of provinces as apolitical objective. After independence there has been a growing recognition of the need to balance die linguistic number with others, such as, national unity, administrative, economic and other considerations. Therefore, the Union of India constituted a committee for reorganisation of the States in India, which was headed by Justice Fazal Ali, and is popularly known as Fazal Ali Commission. The said Commission made several recommendations. The relevant recommendations of the said Commission are as under: II. Recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 the right of each language group to have education in the mother-tongue in public schools at the primary school stage has been recognised by the Congress Working Committee in its resolutions adopted in August, 1949, and May 1953. The right has also been recognised in principle by the State Governments as well as the Government of India. This is clear from the resolution adopted at the Provincial Education Ministers' Conference held in August, 1949, which has been approved by the Government of India, and now serves as a guide to the State Governments in making arrangements for the education of their school-going children whose mother-tongue is different from the regional language. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the State. 51. Accepting the recommendation, the States were reorganised substantially on the basis of language. In many cases it resulted in bringing together people speaking a common language. In terms of the said recommendation 16 constituent units, which are called to be as States and 3 administrated territories were formed. After reorganization of States, on the basis of language, linguistic majority became the rulers of the States, as in a democracy, numerical majority is the only criterion. The horrors of partition of the country were fresh in the minds. By reorganization of states, the Indian polity was once again divided on the basis of the language. People who were living in their respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 minorities and to protect their interests that Article 350-A was introduced to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups. An obligation was cast on every State and every local authority within the State to provide such facilities. It was not made a fundamental right, as otherwise it would have become justiciable. It was relegated to a constitutional right only. The President of India was vested with the power to securing the provision of such facilities. 52. The way Article 350-A is worded makes it very clear that it is not justiciable in a Court of law. It only deals with facility for primary ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 also filed challenging the aforesaid Government Order. During the pendency of the Writ petition before the High Court, the Government decided to refer the matter to an expert committee regarding the steps to be taken in this regard. The Government assured the Court, that the impugned Government Order would not be implemented till the Committee submits its report. On the aforesaid submission, the writ petition was dismissed as withdrawn. Accordingly, a committee consisting of 7 members was constituted with Dr. V.K. Gokak as the Chairman. The Committee was requested to give its opinion on the following questions: (1) Should Sanskrit remain as the subject of study in the school syllabus?. (2) If so, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 from the academic year 1982-83 itself and the language pattern for the High Schools prescribed in para (1) above will come into effect from the academic year 1987-88. 4. Students joining VIIIth standard from the academic year 1982-83 cannot take Sanskrit as first language or as composite first language. They can take Sanskrit as third language. This system will continue till the language pattern prescribed in para (1) above comes into force from the academic year 1987-88. 5. The Commissioner for Public Instruction was requested to take necessary action in the matter immediately to implement the above orders. 58. Since it was felt that the order dated April 30, 1982 did not sufficiently reflect the aspirations of the Kannada speaking people, the Government thought it expedient to plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 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 Writ Petition Nos. 18882 to 18885 of 1982 in the High court of Karnataka wherein operation of the corresponding para (4) of Government Order dated April, 30, 1982 has been stayed. 4. The Commissioner for Public Instructions is requested to take necessary action in the matter immediately to give effect to the above orders. 5. Separate orders will issue regarding constitution of the High Power Committee for effective implementation of the language policy. 6. The orders issued in Government Order No. ED 115 SOH dated April, 30, 1982 are hereby withdrawn. 7. Pursuant to the abovesaid order, the Director of Public Instructions issued a circular dated August 11, 1982 in the following terms: All the non-teaching Kannada schools in the state should begin to teach Kannada language from the 1 standard in the year 1982-83 as per instructions contained in para (3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 State in fulfilment of the desire of the Kannada speaking people that Kannada which is not only the regional language but has also been declared by an Act of Legislature as the official language of the State, is really laudable and its appropriateness is unquestionable, but the manner in which it is sought to be given effect to by the impugned order has resulted in the violation of the provisions of the Constitution. II. (1) The fact that Kannada is the regional as also the official language of this State does constitute a rational basis. (i) for, making the study of Kannada language compulsory as one of the two languages for study from that class of primary school from which study of another language in addition to mother-tongue is made obligatory to all the children as part of the general pattern of primary education and (ii) for making the study of Kannada compulsory as one of the three languages to be studied by the students at the secondary school level, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minorities is also violative of the fundamental right guaranteed to linguistic minorities to conserve and develop their language and script and to establish and administer the educational institutions of their choice, guaranteed under Articles 29 and 30 of the Constitution respectively. Thereafter, they answered three questions referred for their opinion as under: (1) The Government Order dated 20th July, 1982 in so far it relates to the making of study of Kannada as a compulsory subject to children belonging to linguistic minority groups from the first year of the primary school and compelling the primary schools established by the linguistic minorities to introduce it as a compulsory subject from the first year of the primary school and also in so far it compels the students joining high schools to take Kannada as the sole first language and compelling the high schools established by linguistic minorities to introduce Kannada as the sole first language in the secondary schools, is violative of Articles 29(1) and 30(1) of the Constitution. (2) The Government Order dated 20-7-1982 in so far it relates to the making of study of Kannada as a compulsory subject to children b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed number of children having a particular language as their mother-tongue get admitted to any of these primary schools and therefore the State should make it obligatory for each of these institutions to impart primary education in the mother-tongue of the children concerned. Ultimately, the Division Bench disposed of the aforesaid writ petitions with the following order: 14. In the result, we make the following order: (i) In WP Nos. 28566 and 28576/1982, 32654/1982, 33790/1982, 36630/1982, 36630A/1982 and 13907/1983; (i) The Writ Petitions are allowed; (ii) The impugned Government Order dated 20-7-1982 as also the Circular dated 11-8-1982 issued by the Director of Public Instructions pursuant to the aforesaid Government Order, are declared void as offending Articles 14, 29(1) and 30(1) of the ' Constitution of India; (iii) Consequential direction shall issue to the State Government. (a) to provide the ensure that primary education up to first four years including pre-primary education is imparted in mother-tongue of the children concerned, in Government schools as also schools established by any private agency including linguistic minorities which are rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k note of the fact that the corrigendum came to be issued on 22.06.1989 amending the earlier Government Order dated 19.06.1989 which read as hereunder: In view of the liberty given to the State of Karnataka the present GO. bearing No. 87 Prousebha 88, Bangalore dated 19-6-1989 (quoted above) has come to be passed. A corrigendum also came to be issued on 22-6-1989 which reads as under: For para (i) of Order portion of the above said Govt. Order dated 19-6-1989 i.e., from the words From 1st Standard...subject to study the following para shall be substituted: From 1st Standard to Nth Standard where it is expected that normally mother tongue will be the medium of instruction, only one language from Appendix-1 will be compulsory subject to study. Noticing the aforesaid corrigendum, the Supreme Court observed as under: A careful reading of the above G.O. would clearly indicate that the element of compulsion at the primary stage is no longer there because the G.O. is unequivocal when it says from I to 4th Standards mother tongue will be the medium of instruction, only one language from Appendix-I will be compulsory subject of Study. From 3rd Standard onwards Kannada w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution cannot be a means to indicate policy preference. In a matter relating to policy this Court should decline to interfere. In the result, we conclude the writ petition is devoid of merits and is accordingly dismissed. The said judgment of the Supreme Court is reported in AIR 1994 SC 1702. 65. When the matter was pending before the Supreme Court, there were discussions regarding medium of instruction to be adopted at the primary stage. In fact, it was discussed in the Legislature also. The Government noticed that intellectuals, educational experts and public institutions were of the opinion that the medium of instruction at primary stage should be in the mother tongue and it should not be in any other language. The Kannada protagonists were demanding that no permission should be granted to start English Medium Primary Schools. However, minorities and a Section of public were demanding the Government to grant permission to start English Medium Schools. Since several years the Government was following strict policy while giving permission to English Medium Schools. Therefore, in 1991 there were about 500 unauthorised English Medium Primary Schools. Some of them h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After holding inspection of the schools, if minimum facilities are available and if the rules and regulations of grant-in-aid Code are fulfilled, permission can be given to such unrecognized schools. No permission be given to other schools. Admission to the 1st standard should be given to study only in Mother-tongue medium in such recognized schools from June 1991. In case this condition is not fulfilled, the recognition of such schools should be withdrawn. (B) In schools recognized as indicated above, opportunity should be given to complete the study in 4th standard in the medium in which the student are studying at present in 2nd, 3rd and 4lh standards. (C) In case required number of students are not available to study in mother tongue medium or if facilities could not be provided to study in mother tongue medium, such schools should opt for the regional language as their medium. In the primary stage, no permission should be given to CBSE, ICSE schools in the state. Such existing schools should satisfy only the needs of the students who have the right to study in English Medium as per the Constitution, court decisions and as per provisions of Grant-in-aid Code. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: Proceedings of Government of Karnataka Sub: Regarding implementation of languages Policy in the primary and High Schools Read:-1) Government Order No. ED 113 SOH 79 dated 30-04-82. 2) Government Order No. ED 87 Rasheba 88 dated 19-6-89. 3) Government Order No. ED 205 PGC 91 dated 28-4-92. 4) Government Order No. ED 205 PGC 91, dated 24-6-92. 5) Government Order No. ED 113 SOH 79, dated 20-7-92. 6) Judgment of Supreme Court in application No. 536/91 dated 8-12-93. 7) Government Order No. ED 28 PGC 94 dated 22-4-94. Preamble: The Government as per order dated 30-4-1982 decided in introduce Kannada or the mother tongue of the student as first Language at the stage of High School. Along with that, the student should pass in two languages out of 10 languages mentioned in the order. Government, reviewing this order, issued afresh order on 20-7-1982, directing that from the academic year 1987-88, Kannada should be only first language at the state of High School and the student should select two languages for study out of 10 languages, including, Kannada, mentioned in that order. It was also directed that in non-Kannada schools, teaching of Kannada shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of English Medium Schools which are not entitled for approval, if they have fulfilled order 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. The Supreme Court as per its judgment dated 8-12-1993 upheld the judgment passed by the High Court and also the legality of the order passed by the Government on 19-6-1989 on the direction of the High Court and proceed to observe that Government is well aware how to implement its language policy effectively and the Courts should not interfere with the same. Since it is necessary to pass orders in the background of the judgment of the Supreme Court, regarding language policy to be followed by Primary and High Schools and regarding medium of instruction to be adopted at the Primary stage, this order is passed. Government Order No. ED 28 PGC 94, Bangalore Dated 29.04.1994 1. Cancelling all earlier orders, including GO dated 22.04.1994 pertaining to the subject, on the basis of the judgment dated 8.12.1993 of the Supreme Court, the Government has passed the following order regarding l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mother tongue • or Kannada, with effect from the academic year 1994-95 in all Government recognized schools in classes 1 to 4. 3. The students admitted to 1st standard with effect from the academic year 94-95, should be taught in mother tongue or Kannada medium. 4. However, permission can be granted to the schools to continue to teach in the pre-existing medium to the students of standards 2 to 4 during the academic year 94-95. 5. The students are permitted to change over to English or any other language as medium at their choice, from 5th standard. 6. Permission can be granted to only students whose mother tongue is English, to study in English medium in classes 1 to 4 in existing recognized English medium schools. 7. The Government will consider regularization of the existing unrecognized schools as per policy indicated in paragraphs 1 to 6 mentioned above. Request of schools who have complied with the provisions of the code of education and present policy of the government will be considered on the basis of the report of the Zilla Panchayat routed through commissioner for public instructions. 8. It is directed that all unrecognized schools which do not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the regulation imposed by the State of Maharashtra upon the linguistic minorities to teach its regional language is only a reasonable one.... A particular State can validly take a policy decision to compulsorily teach its regional language. ...It is difficult to read Articles 29 and 30 in such a way that they contain the negative right to exclude the learning of regional language. Ipso facto it is not possible to accept the proposition that the people living in a particular State cannot be asked to study the regional language. While living in a different State, it is only appropriate for the linguistic minority to learn the regional language. In our view the resistance to leant the regional language will lead to alienation from the mainstream of life resulting in linguistic fragmentation within the State, which is an anathema to national integration. The learning of different languages will definitely bridge the cultural barriers and will positively contribute to the cultural integration of the country. In our view,' the impugned policy decision is in the paramount interest of the students who are living in the State of Maharashtra and also in the larger interest of the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 the primary education to be imparted in Government schools as well as aided schools meant classes from I to V standard. Accordingly, by an order dated 30.5.2002 the impugned order herein dated 29.4.1994 was amended to substitute classes from I to IV with I to V. 74. Secondly the Government of Karnataka issued an order dated 29.10.2006 taking note of the National Curriculum Frame Work 2005, the relevant portion of which reads as under: The multilingual character of Indian society should be seen as a resource to promote multilingual proficiency in every child, which includes proficiency in English xxxx xxxxxxx xxx 3.13 Second-language Acquisition. English in India is a global language in a multilingual country. A variety and range of English-teaching situations prevail here owing to the twin factors of teacher proficiency in English and pupils' exposure to English outside school. The level of introduction of English is now a matter of political response to people's aspirations rather than an academic or feasibility issue and people's choices about the level of its introduction in the curriculum will have to be respected, with the proviso that we do not exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction only one language from Appendix I will be compulsory subject to study (underlining by us) 77. Therefore, it is clear, even in the said order either Kannada or the mother tongue was not made the only medium of instruction from I to IV standard. It was observed that normally mother tongue will be the medium of instruction. However, the stress was on only one language from Appendix I will be the compulsorily subject to study. The compulsion was to study one language of the choice of the student and not Kannada, as was the case in the earlier Government Order. Therefore, the Supreme Court observed that a careful reading of the Government Order would clearly indicate that, the element of compulsion at the primary stage is no longer there, when the Government Order is unequivocal, when it says from 1st to IV standard mother tongue will be the medium of instruction. This part of the Government Order is clearly in consonance with Article 350-A of the Constitution of India. This Article is designed to implement one of the State Organization Commission's important recommendations regarding safeguards for linguistic minorities in the State after reorganization. Thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment Order dated 29-4-1994. The validity of these clauses were not the subject matter of earlier proceedings either before this Court or the Apex Court. The constitutional validity of these clauses was not challenged earlier, no arguments were addressed for or against the said clauses, neither this Court nor the Apex Court considered the validity of these clauses nor any decision was rendered. It is for the first time, the aforesaid clauses are challenged before this Court. Therefore, the aforesaid decisions do not conclude the matter in issue in this writ petition. 80. However, how the aforesaid decisions have to be considered and appreciated, and what weight is to be given, and how to find out what is the ratio decedent of those decision which could be construed as binding precedent are all well settled. In this regard it is useful to refer to the following judgment on the point 22. The following words of Lord Denning in the matter of applying precedents have become locus classics : Each case depends on its own facts and a close similarly between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrigation Division v. N.C. Budharaj (2001) 2 SCC 721 has held as under: A decision is an authority on the question that is raised and decided by the court. It cannot be taken as an authority on a different question though in some cases the reason stated therein may have a persuasive value. 83. The Supreme Court in the case of Director of Settlements , A.P. and Ors. v. M.R. Apparao and Anr. [2002]2SCR661 has observed as under: 7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled that a little difference in facts or additional facts may lead to a different conclusion. 86. The Constitution Bench of the Supreme Court in the case of Islamic Academy of Education v. State of Karnataka AIR2003SC3724 has held as under: Per Khare, C.J (for himself and for Variava, Balakrishnau and Pasayat, JJ.) The answers to the questions, in the majority judgment in Pai case (in para 161 therein) are merely a brief summation of the ratio laid down in the judgment. The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment. Per Sinha, J. A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon readi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io and without argument are of no moment. Mere casual expression carry no weight at all. Nor every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement having the weight of authority. 88. Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. Quotability as law applies to the principle of a case, its RATIO DECIDENDI . The ratio decidendi of the judgment has to be found out only on reading the entire judgment. The ratio of the judgment is what is set out in the judgment itself. The ratio decidendi of the judgment is its reasoning which can be deciphered only upon reading the same in its entirety. By reading a line here and there from the judgment one cannot find out the entire ratio decidendi of the judgment. It is the principle found out, upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. A judgment of the Court has to be read in the context of questions which arose for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Full Bench Judgment, the question for consideration was, whether the Government Order making study of Kannada compulsory from the First Year of Primary School in addition to mother tongue of the land was violative of Article 14, 29 and 30 of the Constitution and the Government Order prescribing Kannada as sole First Language at High School level was also violative of Article 14, 19 and 30 of the Constitution. In the Government Order dated 19.06.1989 which was also the subject matter of the Writ Petition under Article 32 of the Constitution of India before the Supreme Court, the question was again only one language from Appendix-I could be the compulsory subject of study. The Full Bench struck down the earlier Government Order as there was compulsion to study Kannada and therefore violative of Article 19, 21 and 30(1) which finding was upheld by the Supreme Court. For the same reason the Supreme Court declined to interfere with the subsequent Government Order dated 19.06.1989 as there was no compulsion to study any particular language from I to IV Standard, as is clear from Clause-I of the Government Order. Therefore, the ratio decedent, of the judgment of the Apex Court as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21A Right to education The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine . Article 26. Freedom to manage religious affairs.- Subject to public order, morality and health, every religious denomination or any section thereof shall have the right- (a) To establish and maintain institutions for religious and charitable purposes; Article 29. Protection of interests of minorities. (1) Any section of the citizens residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30. Right of minorities to establish and administer educational institutions.- (1) All minorities, whether based on religion or language, shall have the right to establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion per se will not fall under any of the four expression in Article 19(1)(g). Occupation would be an activity of a person undertaken as a r means of livelihood or a mission in life. Therefore it was held that right to establish and administer educational institution is the fundamental right. The right to establish and maintain educational institutions may also be sourced to Article 26(a) which grants in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognised head of charity. Therefore, religious denominations or sections thereof, which do not all within the special categories carved out in Articles 29(1) and 30(1) have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination including the majority religious community to set up an educational institution. Therefore it was held that Constitution provides the fundamental right to establish and administer educational institution to all irrespective of them belonging to majorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and administer educational institutions is provided for by Article 30(1). To some extent, Article 26(1)(a) and Article 30(1) overlap in so far as they relate to the establishment of educational institutions but whereas Article 26 gives the right both to the majority as well as minority communities to establish and maintain institutions for charitable purposes, which would inter alia include educational institutions. Article 30(1) refers to the right of minorities to establish and maintain educational institutions of their choice. Another difference between Article 26 and Article 30 is that whereas Article 26 refers only to religious denominations. Article 30 contains the right of religious as well as linguistic minorities to establish and administer educational institutions of their choice. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation. The exercise of fundamental right may be controlled in a variety of ways. For example, the right to carry on a business does not entail the right to carry on a business at a particular place. The right to carry on a business may be subject to licensing laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Governing bodies or thrusting the staff without reference to Management. Article 30(1) bestows on the minorities, whether based on religion or language, the right to establish and administer educational institution of their choice. Unlike Article 25 and 26. Article 30(1) does not specifically state that the right under Article 30(1) is subject to public order, morality and health or to other provisions of Part III. This sub-article also does not specifically mention that the right to establish and administer a minority educational institution would be subject to any rules or regulations. The right under Article 30(1) is not so absolute as to prevent the Government from making any Regulation whosoever. Any regulation framed in the national interest must necessarily apply to all educational institutions whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the government from framing regulations in that behalf. It is of course true that Government regulations cannot destroy the minority character of the institution or make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest. General laws of the land applicable to all persons have been held to be applicable to the majority institutions also for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality. Even though the words of Article 30(1) are unqualified atleast certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1), has therefore not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy , there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere as such provisions do not in any way interfere with the right of administration or management under Article 30(1). 95. It is in the backdrop of the aforesaid constitutional provisions and the law laid down by the Supreme Court, we have to find out the answer to this vexed question. While interpreting a constitutional provision, we have to bear in mind the principles evolved by the Apex Court over the years. The Constitution is not an ephemer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part III as a fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. 97. It is in this background we have to see what rights flow from these Articles, though they are not expressly stated in those Article. It is to be remembered, if a particular right is clearly stated in the provision, the question of interpretation would not arise. It is only when the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making right to education under Article 21 of the Constitution a reality, the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate. The fundamental rights guaranteed under Part in of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. The right to education , therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. 101. Referring to these two judgments, the Constitution Bench of the Supreme Court in the case of Unni Krishnan J.P. and Ors. v. State of Andhra Pradesh AIR 1993 SC 2173 held that the right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in Part IV of the Constitution. This right, however is not an absolute right. The right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas, freedom of circulation, right to publish and circulate one's ideas, opinions and views, right to speak, publish and express their views as well as right of people to read, right of citizens to exhibit film on doordarshan, right to express one's opinion by words of mouth, writing, printing picture or any other manner, right to propagate or publish public opinions, right to air his or her views through the printing and/or electronic media or through any communication method. 104. This right to know and right to receive and impart information necessarily includes the right to receive education or to impart education. Education is a process through which one acquire knowledge, which is a bundle of information. The medium of acquiring knowledge or information should be the choice of the person acquiring the knowledge. In what language the instructions are to be taken or imparted should be the choice of the student or the person imparting education. There cannot be any compulsion regarding the medium of instruction. If there is compulsion, then it would amount to the violation of a human right apart from the fundamental right to freedom of speech and expression. Medium of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupation even if there is no element of profit generation. Therefore, the right to carry on any occupation, includes the right to establish and administer educational institutions. It is a fundamental right guaranteed under Article 19(1)(g) to all the citizens of this Country irrespective of the fact whether they belong to majority or minority. It is implicit in the said right to establish and administer an educational institution, the right of a citizen to choose the medium of instruction in which knowledge is to be imparted. 106. The right to establish and maintain educational institution is also conferred on every religious denomination or any section thereof, irrespective of the fact that they belong to majority or minority community in the Nation, under Article 26(a) of the Constitution. Education is per se regarded as an activity that is charitable in nature. Education is a recognised head of charity. Therefore a right to establish and maintain institution for charitable purposes includes a right to establishment and administration of educational institution. However, it is a right not conferred on individuals but on a religious denomination or a Section of such denominat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that their children should be brought up properly and efficiently and be eligible for higher University education and go all over the world fully equipped with such intellectual attainments as it will make them fit for entering the public services. Therefore, the educational institutions of their choice will also necessarily include institutions imparting general secular education. It also includes the right to choose the medium of instructions of their choice other than the mother tongue of the child or the language of the said linguistic minority. The words of their choice which qualify educational institutions shows the vast discretion and option which minorities have in selecting the type of the institution which they want to establish. The said type of institution includes the type of medium of instructions in which they want to impart education. The dominant word is choice and the content of that Article is as wide as the choice of the particular community may make it. 109. The right conferred under Article 19(1)(a), 19(1)(g) and 26 are not absolute rights. The right under Article 19(1)(a) and 19(1)(g) could be curtailed by the State by enacting the law by imposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the majority or minority, linguistic or religious. This article confers a right on the citizen not to be denied admission to an educational institution solely on the ground of religion, caste, race, language or any of them. Article 30(1) of the Constitution confers on the religious and linguistic minorities to administer and establish an institution of their choice which includes right to admit students. Treating Article 29(2) as a facet of equality, the apex Court gave a contextual interpretation to Articles 29(2) and 30(1) while rejecting the extreme contentions on both sides, i.e. on behalf of the institutions that Article 29(2) did not prevent a minority institution to preferably admit only members belonging to the minority community, and the contention on behalf of the State that Article 29(2) prohibited any preference in favour of a minority community for whose benefit the institution was established. Seen from this context any Government order or law which prohibits a citizen from securing admission in educational institution on the ground of language would be violative of Article 29(2) of the Constitution. No regulation could be passed by the State preventing the exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the medium of instruction for the University. No inconvenience or difficulties, administrative or financial can justify the infringement of the guaranteed rights. 115. The Supreme Court in the case of Usha Metha and Ors. v. State of Maharashtra and Ors. (2004)6SCC264 affirmed the earlier view of the Apex Court regarding medium of instructions in the following words: This Court ruled that the right of minorities to establish and administer educational institutions of their choice under Article 30(1) read with Article 29(1) would include the right to have choice of medium of instruction. (See generally the Constitution Bench decisions in D.A.V. College v. State of Punjab AIR1971SC1731 and D.A.V. College v. State of Punjab AIR1971SC1737 . But this exercise of choice of instructive language in schools by the linguistic minorities is subject to the reasonable regulation imposed by the State concerned. A particular State can validly take a policy decision to compulsorily teach its regional language. (See also English Medium Students Parents Association Case). 116. Though the question whether the medium of instruction at primary level should be only mother tongue or the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l authority or financially aided by them. In this behalf as stated earlier, the minimum number of students necessary for making a provision for instruction in any language has also been specified. That being the position, if a linguistic minority group itself establishes a school, the State is under a duty to provide all facilities such as recognition and financial grant if sought for in accordance with the regulations governing the grant of recognition and aid. This is also abundantly clear from Clause (2) of Article 30 which provides that the State shall not in granting aid, discriminate against educational institutions established by a religious linguistic minority. 118. That is not all what they have said about primary education. What the State has not noticed in the aforesaid Full Bench judgment is contained in paragraphs 46, 48, 49, 50 and 82 which reads as follows: Para-46: from the above judgments, it is dear that in respect of linguistic minority institutions the medium of instruction is to be entirely the choke of the management concerned. Para-49: Learned Advocate General, however, tried to distinguish the ratio of these decisions on the ground that in these dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable regulation and therefore violative of Article 14, it follows that it is also violative of Articles 29 and 30 of the Constitution. In other respects the State has undoubtedly powers to prescribe any course of study which is in the interest of excellence in education. This power would certainly include the power to prescribe language or languages, as course of study in the educational institutions. (underlining by us) Para 82. In the instant cases, we are concerned not with the medium of instruction but only with the primacy extended to the official language of the State as the sole compulsory first language of the State. The State has permitted not only the freedom of choice in the matter of medium of instruction to the linguistic minorities but also have given the choice to learn the mother tongue as a second language instead of as the first language allowing grace marks of 15 to the linguistic minorities to overcome lack of familiarity of Kannada and the resultant deficiency in the matter of learning Kannada. I do not think that prescription of the first language is not a power which the State can exercise and that it amounts to interference in the administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... education of their children in the school and language of their choice, and (b) in the case of minorities, said right is further reinforced by the language of Article 30(1) of the Constitution. (Underlining by us) 121. The Full Bench of the Gujarat High Court in Shri Krishna Ranganath's (Supra) while dealing with the Gujarat University Act, 1949, observed as follows: In our view the Act gives no power to the University to impose Gujarati or Hindi as the sole medium of instruction and examination or even as one of the media of instruction and examination on affiliated colleges or to prohibit the use of English as a medium of instruction and examination in affiliated colleges. (i) Statutes 207 and 209 in so far as they seek to lay down and impose Gujarati and/or Hindi in Devanagiri script as the medium of instruction and examination on institutions other than its own institutions are unauthorised and beyond the powers of the University and the Senate and are therefore, null and void as neither Section 4(27) nor any other provision of the Act empowers the University to lay down Gujarati or Hindi as a medium of instruction and examination for such institutions or to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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. 123. This contention is primarily based on the decisions of the Supreme Court under Article 30(1) where it has been held that right under Article 30(1) is absolute but subject to regulations to be imposed by the State, to maintain excellence of education. 124. Therefore, in the light of the aforesaid constitutional provisions and the decision of the apex Court and this Court, it is clear that the right to education is a fundamental right, which also includes the right to choose the medium of instruction. The medium of instruction is one aspect of freedom of speech and expression. The freedom of speech and expression includes right to receive and acquire information and to disseminate it. It also includes right to educate, right to be ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have seen in the last 60 years of independence, how these policies are implemented. To say the future of the children is safe in their hands and not in the hands of their parents is an insult to the conscience of the country. It is when the parents of the children, due to ignorance, illiteracy, and poverty are unable to decide what is good for the child and are not aware of the fundamental right of the child and the fundamental duty of the parent, the Government should give its helping hand and aid them in educating their children. The financial constraints of the government should not come in the way. They should provide requisite funds for their education. In doing so they would be complying with a constitutional obligation. However, when the parents are educated, financially sound, socially advanced, there is no necessity for the state to take upon itself the responsibility of educating their children. Such parents understand their fundamental duty to educate their children and they are eager to discharge their duties. They are prepared to sacrifice anything in life for their education. In fact people coming from poor and middle class families, their whole life depends on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te imposed obligation to educate their children by sending them to schools or colleges established and administered by their own religious minority so long as these schools and colleges meet the standards established for secular education. (underlining by us) Finally, it was stated: We find it impossible to subscribe to the proposition that State necessity is the criterion for deciding whether a regulation imposed on an educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it thinks necessary to protect what in its view is the interest of the State or society, the right under Article 30(1) will cease to be a fundamental right. 127. In the case of General Secretary, Linguistic Minorities Protection Committee and Anr. Etc. v. State of Karnataka and Anr. (Supra) full Bench of this Court dealing with parental right has held as under: Para 23 (1) Primary education must be in Mother Tongue if that happens to be the choice of the parents. Para 27 It is also universally recognised that it is the parental right to have primary education of their children in the school and language of their choice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if, they want their children to learn something, which is prohibited under law. All that they want is to educate their children in all the subjects of their choice. Certainly, it cannot be said that the nation's image and dignity will be affected, as the language English has already been accepted by the nation as an 'associate language'. No one can claim to know better than the parents about the child, to decide, as to what the child requires in the sphere of education and such a decision they take keeping their duty in mind to shape the career and destiny of their child. With the nation touching a population of 100 crores and the State of Tamil Nadu with more than 6 crores, may not be able to do much in view of the limitations and constraints on them. First, the State has to endeavour to provide food and shelter to every one and education comes only thereafter. It can safely be said that the only logical conclusion that flows from the various decisions referred to supra and the discussions made above, is that the right to education is a fundamental right, which also includes the right to choose the medium of instruction and it can be exercised by the parents on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial capacities, the conditions of living necessary for the child's development. 3. States parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. 130. Thus, this parental right is recognised by the United Nations as is clear from Article 26(3) of the Universal Declaration of Human Rights Convention on the rights of the child, which was adopted by the General Assembly of the United Nations on 20th November 1989, which was accepted by the Government of India on 11th December 1992 which recognizes that every child has an inherent right to life, right to education and the parents have the right to choose the kind of education that shall be given to their children. The United Nations and other International Organizations only has adopted the national ethos of this country, which is cherished for over centuries in their land. 131. In 2002 when primary education was made a fundamental right by introducing Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the paramount interest of the child and that only the State would have the paramount interest of their child. Similarly, under the provisions of the Hindu Minority and Guardianship Act, 1956 which deals with appointment of a guardian to a Hindu minor, Clause 13 of the Act makes it clear that the welfare of the minor shall be the paramount consideration. Even though the said law provides the custody of the child below the age of 5 years should be with the mother and thereafter the father has a right to the custody of the child but still when the husband and wife are not together a dispute arises between them and in particular regarding the custody of the child, notwithstanding the aforesaid rights conferred under the Act on both father and mother, it is the welfare of the child which should be the paramount consideration which should weigh with the Courts in passing appropriate orders. Therefore, the State has no role to play, when child is taken care of by his or her parents. State or Court steps in when there is disharmony between the husband and the wife. 134. India is a Democratic Country. It is governed by a written Constitution. Its unity lies in diversity. Its hope and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not. No one can question the constitutional right of parents to discharge their fundamental duty to educate their children by sending them to schools or colleges so long as these schools and colleges meet the standards established for secular education. The medium of instructions is to be entirely the choice of the parents and the student. No one claim to know better than the parents about the child, to decide, as to what the child requires in the sphere of education to shape its career and destiny. The beneficiary of such a fundamental right should be allowed to enjoy it in the fullest measure. 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. Therefore, it is a fundamental right of the parent and child to choose the medium of instruction even in primary school. The police power of the State to determine the medium of instruction must yield to the fundamental right of the parent and the child. 136. Lastly Article 30(1) expressly provides that the linguistic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view is the basic feature upon which hinges the checks and balances blend with the hind sight in the Constitution as people's sovereign power for their protection and establishment of egalitarian social order under the rule of law. The process of judicial scrutiny of the legislative Acts on the touchstone of the Constitution is technically called judicial review . The Courts, however, adopt judicial self-restraint in discharging their functions of judicial review in order to maintain harmony between the judiciary, the legislature and the executive. Judicial review is an unavoidable necessity where there is a constant danger of legislative or executive lapses and excuses. The judiciary needs to be firm in its operation of duty and enforcement of Constitutional obligations and the result of its decisions must be towards the ultimate benefit of the nation. A distinction has to be made between the judicial review and justiciability of a particular action. The power of judicial review is implicit in a written constitution. Justiciability relates to a particular field falling within the purview of the power of judicial review. The power of judicial review over legislative and execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities in the matter of granting permission for starting schools. The question of policy is essentially for the State and such policy will depend upon an overall assessment and summary of the requirements of residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. If the overall assessment is arrived at after a proper classification on a reasonable basis, it is not for the Courts to interfere with the policy leading up to such assessment. 142. In the case of R.K. Garg v. Union of India [1982]133ITR239(SC) the Supreme Court held thus: ...No direction can be given or is expected from the Courts unless while implementing such policies there is violation or infringement of any of [1982]133ITR239(SC) the constitutional or statutory provision. The new Telecom policy was placed before the Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether the said policy should have been adopted. Of Course, whether there is any legal or constitutional bar in adopting such policy can certainly be examined by the Court. 143. In the case of State of M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts. 145. In the case of Premium Granite and Ors. v. State of T.N. [1994]1SCR579 , the Supreme Court held thus: 54. It is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether the particular public policy is wise or a better, public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authority as the case may be.... 146. In the case of M.P. OIL Extraction and Anr. v. State of M.P. and Ors. (1997)7SCC592 the Supreme Court observed thus: 41. ...The executive authority of the State must be held to. be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution of such policy offends other constitutional pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. 149. Therefore the parameters of judicial review is well defined. The power of judicial review is implied in written democratic constitution, which provides for separation of power. The power of judicial review over legislative and executive action vested in the High Court under Article 226 and the Supreme Court under Article 32, is an integral and essential feature of the constitution, constituting the part of its basic structure. Judicial review in our country is the heart and soul of our constitutional scheme. By means of judicial review, the courts restrains unconstitutional exercise of power by the Legislative and the Executive. To pronounce upon the constitutional law is not legislating. While exercising the power of judicial review of administrative action, the Court does not act as an appellate authority. Judicial review is an unavoidable necessity where there is constant danger of legislative or executive lapses and excesses. Judicial restraint is the only check on exercise of such judicial power. The power of judicial rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Government on education over which the Court has no jurisdiction. 153. From the aforesaid submissions it is clear that what they contend is even if right to choose the medium of instruction is held to be a fundamental right, the said right being not a absolute right, the State has the power to regulate the same. In fact, reliance is placed on the observations of the Division Bench of this Court in the case of General Secretary, Linguistic Minority Protection Committee v. State of Karnataka ILR1989KAR1595 wherein it is stated that a Regulation which requires imparting a pre-primary and primary education up to 4* Standard in mother tongue is a reasonable Regulation, in the interest of excellence in education and in the interest of minorities. It is also consistent with the claim of linguistic minorities and therefore it is not violative of any Constitutional provision. 154. In order to appreciate this contention let us look at the pronouncement of the Supreme Court on this point. In the case of Rev. Sidhrajbhai Sabbai and Ors. v. State of Gujarat and Anr. AIR 1963 SC 540 the Supreme Court observed thus: Regulation made in the true interest of efficiency of instruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of State necessity as conceived by the majority would be to subvert the very purpose for which the right was given. What then are the additional regulations, which can legitimately be imposed upon an educational institution established and administered by a religious or linguistic minority, which imparts general secular education and seeks recognition or affiliation? Recognition or affiliation is granted on the basis of the excellence of an educational institution, namely, that it has reached the educational standard set up by the university. Recognition or affiliation is sought for the purpose of enabling the students in an educational institution to sit for an examination to be conducted by the university and to obtain a decree conferred by the university. For that purpose, the students should have to be coached in such a manner so as to attain the standard of education prescribed by the university. Recognition of affiliation creates an interest in the university to ensure that the educational institution is main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the institution as a vehicle for general secular education as, ex-hypothesi, the only permissible regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the educational institutions in respect of their educational standards. This is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to the interest of the minority community and those persons who resort to it. 156. The Division Bench of this Court in the case of State of Karnataka v. Noble Saint Education Society (Supra) has held as under: 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 to that, there would be a proper and smooth exercise of the right in the interest of the very persons exercising the Fundamental Right. 157. In T.M.A. Pai's case reported in AIR2003SC355 , the Supreme Court has held as under: The regulation must satisfy a dual test, the test of reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al shall be made for teaching their mother-tongue subject to the prescribed conditions. English medium schools instruction :(i) In all primary schools, the medium of instruction shall ordinarily be the Regional language or mother-tongue of the child. (i) Students whose mother tongue is English; (ii) Students whose parents belong to All India Services Central Services, etc., and are liable to be transferred from State to State (on production of certificates form the concerned department); (iii) Students belonging to a migratory group Migratory group means those who have no permanent abodes and who migrate from State to State frequently for business or other reasons e.g. Labour employed in construction work; (iv) Students whose parents are employees of Banks, Firms and other business concerns, which have branches in more than one State and the employees of which are liable to be transferred from State to State (on production of certificate from the concerned authorities); (v) Students whose mother tongue is a minority language for which there is no provision in the schools of the locality. (vi) Such schools should be started only after obtaining the permission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 19.6.1989 passed by the State in pursuance of its executive power under Article 162 of the Constitution as its policy which is upheld by the Apex Court only repeats what is contained in Rule 12(1) and (2) of the Grant-in-Aid Code. The Supreme Court upheld the said Government order on the ground that there is no element of compulsion. Every child, if it chooses to have primary education in mother tongue, it is free to study in the said mother tongue. 163. Further it was contended that Karnataka Education Act, 1983 defines primary education as education in and up to such classes and standards as are prescribed under the Act. Section 7(c) confers powers on the State Government to specify the medium of instruction in respect of the educational institutions and Clause (2) of sub-rule (2) of Section 145 of the Act makes rules to carry out the purpose of the Act and in particular what is contained in sub-Section (1) of Section 7 of the Act. 164. All these provisions empower the Government to specify the medium of instruction in primary school. It does not empower the Government to compel the students to study in a particular medium of instruction. If such compulsion were to be rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutions. The Government has no say in this matter. Once the educational institution is established, they choose the medium of instruction and the course of study, if they want recognition from the State, it is open to the State to prescribe by way of Regulation all that is necessary to achieve excellence in education by way of curriculum, syllabus, qualification of teachers, the nature of examination and host of other matters which are conducive to make the institution an effective vehicle of education. But if the recognition is dependent on the medium of instruction prescribed by the State and if that is not acceded to and if without surrendering that fundamental right the institution cannot be established, then it ceases to be a Regulation. It would be an unreasonable restriction and a total denial of the fundamental right. It impinges on the fundamental right. It is settled law that the State has no right to put such restriction, more particularly, in respect of religious and linguistic minorities in so far as their right to establish and administer educational institution of their choice is concerned. 167. Once it is held that Article 19 is applicable and fundamental right e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urriculum, syllabus, the educational qualification of the teachers to teach in those schools or prescribing requisite infrastructure, irrespective of the medium of instruction. Choice of a medium of instruction, that too at primary level is nothing to do with maintenance of excellence in education. In the medium of instruction chosen, excellence in education is to be ensured. For that purpose in the medium of instruction in which the education is imparted or which is chosen by the children the State can prescribe Regulations to maintain excellence in education. Therefore, the offending clauses in the Government Order which is impugned in this writ petition are violative of the fundamental right guaranteed under Article 19(1)(a)(g), 26, 29(1) and 30(1) of the Constitution and cannot be sustained. 169. Therefore, the aforesaid observation of the Division Bench of this Court in ILR 1989 KAR 1595 at Para 11 is not correct. Firstly it runs counter to the ratio of the Full Bench decision. Secondly it is contrary to the decisions of the Apex Court quoted above. Thirdly the said question did not arise for consideration in the case. It is only an observation and not the ratio of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c chauvinism being sowed in the young minds. Already the country has seen partition on the basis of religion, reorganization of states on the basis of language, and a caste ridden society and one more divisive tendency based on mother tongue, would be handed down to this country which would be an antithesis of national integration and building a modem India based on homogenous culture. 172. The Supreme Court warning against such fissiparous tendencies and centrifugal forces arising out of religious fanaticism and/or linguistic chauvinism which are detrimental to the feeling of fraternity among the people of the country as a whole and the unity and integrity of the Nation which are among the objectives of our Constitution specified in its preamble, has observed in the case of Pradeep Jain v. Union of India (1984)IILLJ481SC as under: It is an interesting facet of history that India was forged into a Nation neither on account of a common language nor on account of the continued existence of a single political regime over its territories but on account of a common culture evolved over the centuries. It is cultural unit-something more fundamental and enduring than any other bond w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 173. The linguistic diversify of India poses complex challenges but also a range of opportunities. India is unique not only because a large number of languages are spoken here but also in terms of the number and variety of languages families that are represented in those languages. There is no other country in the world in which languages from five different language families exist. Even though they are so distinct structurally as to merit classification as different language families, namely, Indo-Aryan, Dravidian, Austro-Asiatic, Tibeto-Burman and Andamanese, they constantly interact with each other. There are several linguistic and sociolinguistic features that are shared across languages that bear witness to the fact that different languages and cultures have coexisted in India for centuries, enriching each other. Classical languages such as Sanskrit, Latin, Arabic, and Persian are rich in their inflectional grammatical structure and aesthetic value, and can illuminate our lives, as many languages keep borrowing words from them. Status of English 174. The English language has been in force in this country from the day the Britishers landed on this soil. Prior to freedo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a transaction of business in Parliament, for Central and State Acts and for certain purposes in High Courts. Section 3 of the Act provided, that notwithstanding the expiry of the period of 15 years or the commencement of the Constitution, the English language may, as from the appointed day, continue to be used in addition to Hindi for all the official purposes of the union for which it was being used immediately before the date and for the transaction of business in the Parliament. After the expiry of 15 years, the English is continued. 176. The Karnataka Legislature passed the Karnataka Official Language Act, 1963 providing for adoption of Kannada as the language to be used for the official purposes of the State and for continuous use of English for transaction of business of the State Legislature. Section 2 of the said Act declare that the official language of the State of Karnataka shall be Kannada. English was continued to be used for official purposes until the Government otherwise directs. By successive notifications the use of English language has been extended and as such English language is being used even to this day. 177. Here it is apt to quote the views of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter state communication is difficult. In Bangalore itself without English it is impossible to get employment in business undertakings. English is one of the two languages recognised by the Central Government. Particularly English is in vogue as link language in South India. Knowledge of English is essential to enter into any one of the Central Government Services. English reigns supreme even in industrial undertakings, factories and autonomous bodies established by Central Government. In South India English is the language of business as well as correspondence. When we refer to South India, it may mean to hold good in respect of certain parts of East India i.e., Bengal, Orissa and Assam States. However, English is an important language by virtue of some significant factors viz., it is an international language and a window unto modern knowledge. Hence the desire to learn English is natural among students. English should be studied in separate units like English for comprehension, spoken English and written English. 179. The background of Constitution of Dr. Narasimhaiah Committee makes it clear that according to the respondents there was a craze among the parents to admit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its characters. About two centuries Kannada Literature had to be content with minor writings. The 18th and 19th centuries were a comparatively barren stretch. It is contended unless the primary education is given in Kannada, the mother tongue of Kannadigas, it would seriously affect not only the language but the culture of Kannadigas. In this context we have to look to the hard realities of life. When there was no threat from the English language, what was the nature of literature produced for centuries and what is the literature which has come into existence after the impart of English language on Kannada literature. 181. The conquest of Kannada speaking areas by the British, of course, meant slavery. But it also meant contact with people belonging to a virile and confident society. It meant contact with people who were evidently successful, who provoked envy by their success and mastery, and who had entirely different values and ways of life. Modern Kannada literature may be said to have begun from 1881 when the Wodeyars were restored to the throne of Mysore. By then the impact of western and in particular British culture had been felt by the educated classes of the area. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... values dawned with irresistible splendor . The history of the fight of the people of England for their rights and doctrines practically bestowed new spectacles. Ideals of freedom, equality, brotherhood and service thrilled young minds. The Englishman's pride in his country and its culture turned the minds of scholars and youths towards their own intellectual and cultural inheritance. The Indian student inherited the entire wealth of English literature from Chaucer through Shakespeare and the Romantic poets to Charles Dickens and also gained the key to unlock the treasures of European Literatures. He became acquainted with new literary forms and with an entirely different approach to literature. Also, the spirit of freedom and equality which succeed the writings of poets like Shakespeare, Milton, Burns and Shelley could not but challenge his own assumptions and values. It also provided an impulse for the conscious attempt to raise his own language and literature to the level of English and its literature. The period 1870-1920 witnessed conscious and concerted efforts to improve the stature of Kannada in different parts of Karnataka and to enrich Kannada Literature. The resurgent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Literature was profoundly influenced by English Literature, it retained the spirit of Indian thought and culture. National pride was awakened. It is the English language and its influence which heralded renaissance in the Kannada literature. It will not be an exaggeration to say the last century could be considered as the golden age of Kannada literature. In fact the quality of Kananda literature and its growth could be gauzed from the fact seven Kannadigas have been conferred with Gnanapeetha awards for their literary works. There is still a vast wealth of literature produced by eminent literary people, if not more in quality and content then these award winning literature, which is yet to be recognized. One of the reason for such a non-recognition may be want of translation of these literary works either to English language or to other languages. All this happened in spite of Kannadigas opting for education in English language. Status of Kannada 183. In 1956 when the States were re-organized on the basis of language, the present day Karnataka came into existence. Kannada was declared as the official language of the State under the provisions of the Karnataka Official Langu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate action and the majority. 185. We are conscious that as Judges, we are neither Jew nor Gentile, neither Catholic nor agnostic and that we would not be justified in writing our private opinion no matter how deeply we might cherish them. And what is said in support of the decision should insulate us as far as rationally possible from the political or religious or cultural conflict beneath the issues. We owe allegiance to the Constitution and are bound by judicial obligation to uphold it. 186. The Englishman ruled this country for over a period of 200 years. They did not compel the local population to learn their language. But they created a situation in which the people were compelled to study English language. Gradually, it became the medium of instruction at all levels of education. The native languages were relegated to the background. In those circumstances, the fight against British Raj included the fight against the English Language also. The fiery speeches and writings of great freedom fighters in particular Mahatma Gandhi, Sri Aurobindo, Sri Tagore and host of other great men, where they expressed their total opposition to English language as medium of instruction at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have introduced any such provision which would run counter to such fundamental rights. The father of the nation, Mahatma Gandhi, who himself being a lawyer, was aware of this legal position. Therefore he was guarded in his statement when he observed: If I had the powers of a despot, I would today stop the tuition of our boys and girls through a foreign medium, and require all the teachers and professors on pain of dismissal to introduce the change forth with He was not a despot, but a great democrat and, therefore, after independence he did not insist on what he believed to be good and, therefore, he is called Mahatma. Only a despotic Government can impose such conditions and not a democratic Government. 187. Here, it is apt to quote the words of Dr. B.R. Ambedkar, who was the Chairman of the Committee constituted to draft the Indian Constitution, pleading his inability to make a provision for medium of instruction in the constitution said as under: I must frankly say, that I find some difficulty in putting matter into a specific Article of the Constitution. 188. He was a Lawyer of eminence, a Constitutional expert, the draftsmen of the Indian Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, determine. However, conspicuously there was no reference to the language in which the primary education is to be imparted. When the Parliament expressly stated in the year 1956, by introducing Article 350-A in the Constitution that the State shall provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups, and when it was amending the Constitution in 2002, making free and compulsory education to all children of the age of six to fourteen years, a fundamental right, they did not prescribe the medium of instruction as mother tongue. It is not without any reason. If mother tongue is prescribed as the medium of instruction at primary stage, the State has no choice or option but to provide such education in the mother tongue only. A fundamental right would have been created in the child or its parents to compel the state to give their child primary education in mother tongue. There was no intention to confer such right. That is why the right under Article 350-A was not made a fundamental right by grouping the said right in Part III of the Constitution. Now a fundamental right is conferred on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a particular language as the sole language of medium of instruction, even if that language happens to be the mother tongue or the regional language. Then it ceases to be a regulation and becomes an unreasonable restriction on the exercise of a fundamental right. Such prescription comes in the way of the establishment of an educational institution. Then it directly impinges the fundamental right guaranteed to linguistic minorities under Article 30(1) of the Constitution of India. It cannot be treated as a restriction under Article 19 (2) and (6) of the Constitution, firstly it is not a reasonable restriction. Secondly, it does not fall within any of the parameters expressly provided in those provisions. Any regulation which infringes a fundamental right is void ab initio. 193. The state could be compelled to provide free and compulsory primary education. However, the State cannot be compelled to give that primary education in a language of the choice of the child. Conversely the State can make primary education compulsory and choose the medium of instruction of its choice in the schools run or aided by the State. But it cannot compel the child to have primary education in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forgetting the hard realities of life. This desire to learn English is not confined to Kannadigas. It is so with regard to all language groups throughout the country. Every one loves his mother tongue, and want his children to achieve proficiency in the mother tongue. But, at the same time he wants his children to learn the English language, and he believes if his children learn in English medium from the early stages, they would be able to get better proficiency in English. Today if parents want their children to study primary school in Kannada medium, they are free to do so and the impugned Government order enables them to do so. But, if the parents want their children to have primary education in English medium, they are not committing any crime. It is not illegal. It is not opposed to public policy, Choice of medium of instruction should be left to the parents and children. In fact responding to the popular demand by a section of the population the Government has taken a policy decision and has issued Government Order dated 29.10.2006 prescribing ENGLISH as a language for study from 1st Standard itself in all Kannada Medium as well as linguistic minority school. It is a good de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 19(1)(g) includes the right to establish and administer an educational institution of one's choice. 'One's choice' includes the choice of medium of instruction. (4) Under Article 26 of the Constitution of India every religious denomination has a right to establish and maintain an institution for charitable purposes which includes an educational institution. This is a right available to majority and minority religious denominations. (5) Every section of the society which has a distinct language script or culture of its own has the fundamental right to conserve the same. This is a right which is conferred on both majority and minority, under Article 29(1) of the Constitution. (6) All minorities, religious or linguistic, have a right to establish and administer educational institutions of their choice under Article 30(1) of the Constitution. (7) Thus, every citizen, every religious denomination, and every linguistic and religious minority, have a right to establish, administer and maintain an educational institution of his/its choice under Articles 19(1)(g), 26 and 30(1) of the Constitution of India, which includes the right to choose the medium of in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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