2008 Supreme(Kar) 414

2008 (3) KLO 2241
IN THE HIGH COURT OF KARNATAKA
Cyriac Joseph CJ, Mrs. Manjula Chellur and N. Kumar, JJ.
Writ Petition No. 14363/1994 (Education) C/w W.P. Nos. 14377/1994, 15491/1994 etc.,
Associated Managements of Primary and Secondary Schools in Karnataka - Petitioners
Vs.
The State of Karnataka by its Secretary, Department of Education and Others - Respondents
Decided on 2-7-2008

Headnote:CONSTITUTION OF INDIA - Articles 19(1)(a) & (g) R/w Article 21(A): [Cyriac Joseph CJ, Mrs. Manjula Chellur & N. Kumar, JJ] Freedom of the Children to have Primary Education in a language of their choice - Held, Article 19(1)(a) declares that all citizens shall have the right to freedom of speech and expression. 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 instruction is a species of right to information. Therefore, the right to medium of instruction of their choice is implicit in this freedom of speech and expression. When right to education is a fundamental right and in particular by Article 21-A, a fundamental right is conferred on all children of the age of six to fourteen years to have free and compulsory education, which is popularly known as "primary education". The State has been conferred power under the said Article to provide for free education in such a manner as the State may, by law, determine. If this Article 21-A is read with Article 19(1)(a) all children have the freedom to have primary education in a language of their choice as it is implicit in the right to freedom of speech and expression, the right to study or get instruction in a language of their choice as it is implicit in the right to freedom of speech and expression, the right to have primary education is a medium of instruction of their choice is enshrined in Article 19(1)(a) read with Article 21-A of the Constitution. As this right is conferred on all citizens under Article 19(1) (a), the said right is also that of the parents of the child, who are interested in educating their child and on whom a fundamental duty is cast under Article 51-A(k), which provides that it shall be the duty of every citizen of India, who is a parent or guardian to provide opportunities for education to his child between the age of six and fourteen years. Both these Articles, i.e., 21-A and 51-A(k) were introduced by way of Eighty Sixth amendment to the Constitution in the year 2002, conferring a right on the child and an obligation on the parent of the child regarding primary education. These two Articles along with 19(1)(a) confers on the child as well as the parent a fundamental right to choose the medium of instruction of their choice.

       CONSTITUTION OF INDIA - Article 26-A: [Cyriac Joseph CJ, Mrs. Manjula Chellur & N. Kumar, JJ] Right to Establish and Maintain Educational Institution - Held, 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 recognized 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 denomination. In other words, it is a collective right to citizens belonging to every religious denomination or section thereof. In so far as the rights conferred on religious denominations under Article 26 is concerned, the said right is always subject to public order, morality and health.

       CONSTITUTION OF INDIA - Article 29(1) : [Cyriac Joseph CJ, Mrs. Majula Chellur & N.Kumar, JJ] Right of any section of the Citizens residing in India or any part thereof and having a distinct language, script or culture of their own, to conserve the same. Held, Article 29(1) applies to any section of the citizens. In other words, it applies to majority and minority, that is, to all citizens. All of them have a fundamental right to protect their language, script or culture and conserve the same. Article 29(1) do not control the rights conferred under Article 30(1) on minorities. Article 30(1) is an independent Article conferring on all religious and linguistic minorities, a right to establish and administer educational institutions of their choice. It does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their languages only. What the Article says and means is, that the religious linguistic minorities should have the right to establish educational institutions of their choice. 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 instruction 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.

       CONSTITUTION OF INDIA - Article 30(1): [Cyriac Joseph CJ, Mrs. Manjula Chellur & N. Kumar, JJ] Right of religion and language of minorities, a right to establish and administer educational institution of their choice - Held, The right under Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. Though the right flowing under Article 30(1) is held to be absolute, the Apex Court has read into this Article the concept of the said right being subject to a regulation protecting national interest. However, the only limitation on the power of the Government while framing regulation is, that it cannot destroy the minority character of the institution or make the right to establish and administer, a mere illusion. The regulation so framed must satisfy the dual test. The test of reasonableness and the test that it is regulative of the educational character of the institution. The object of the said regulation should be to achieve excellence of standard of education and check mal-administration. If it is a restriction and negates the right conferred under Article 30(1) then the said restriction would be void ab initio and the restriction should yield to the said fundamental right. That is the essence of the right guaranteed under Article 30(1) of the Constitution on the linguistic and religious minority, thus protecting these minorities from the onslaught of the majority.

       CONSTITUTION OF INDIA - Article 141: [Cyriac Joseph CJ, Mrs. Manjula Chellur & N.Kumar, JJ] Law declared by the Supreme Court - Binding nature of - Ratio decidendi - What constitutes - Held, The ratio of the judgment is what is set out in the judgement 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 decision is an authority on the question that is raised and decided by the Court, and it is an authority for what it decide and not what can logically be deduced thereupon. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. On facts, held, 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 19.6.1989 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 decidendi, of the judgment of the Apex court as well as the full Bench is "If there is an element of compulsion in the Government policy, which infringes the fundamental rights guaranteed to the citizens of this country under the Indian Constitution, such policy is void and the fundamental rights have to prevail over such Governmental policy. In the absence of such compulsion the courts should not interfere with the policy decision of the Government". The question whether a student, a parent or a citizen has a right to choose a medium of instruction at primary stage other than mother tongue or regional language was not the subject matter of the aforesaid proceedings and the said question was not considered either by this court or by the apex court and no decision rendered in the aforesaid proceedings on the said point. Therefore the contention that the question involved in this Writ Petition are squarely covered by the earlier decisions of this court and Apex court is without any substance and accordingly it is rejected.

       CONSTITUTION OF INDIA - Article 226 & 227: [Cyriac Joseph, CJ & Mrs. Manjula Chellur & N. Kumar, JJ] Power of the State to decide the language of the children in primary education-right of the parents to secure primary education in the mother tongue - Held, The parental right in education is the very pivotal point of a democratic system. It is the touch-stone of difference between democratic education and monolithic system of cultural totalitarianism. A child is not a mere creature of the State. The parents have the right to decide as to whether their children should secure primary education in the mother tongue or 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 college meet the standards established for secular education. The medium of instructions is to be entirely the choice of the parents and the student. 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.

       CONSTITUTION OF INDIA - Articles 226 & 227: [Cyriac Joseph CJ, Mrs. Manjula Chellur & N. Kumar, JJ] Government Orders dated 22.4.1994 and 29.4.1994 - Directions issued by the Government to several schools to change the medium of instructions - Challenge as to -Constitutional validity of - Grievance of the petitioner that the Government Orders are violative of Articles 14, 19(1)(a), 21,29(2) and 30(1)of the Constitution of India -Challenge is mainly against element of compulsion found in Clause 6 of the Government Order under which mother tongue or Kannada language shall be the compulsory medium of instruction in I to IV Standards of Primary Schools - Held, Right to education is a fundamental right being a species of right to life flowing from Article 221 of the Constitution. By virtue of Article 21-A right to free and compulsory primary education is a fundamental right guaranteed to all children of the age of six to fourteen years. The right to choose a medium of instruction is implicit in the right to education. It is a fundamental right of the parent and the child to choose the medium of instruction even in primary schools. Right to freedom of speech and expression includes the fright to choose a medium of instruction. Imparting education is an occupation and, therefore, the right to carry on any occupation under Article 19(1)(g) includes the right to establish and administer and educational institution of one’s choice - ’One’s choice’ includes the choice of medium of instruction. 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 and educational institution. This is a right available to majority and minority religious denominations. 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. All minorities, religious or linguistic, have a right to establish and administer education a institutions of their choice under Article 30(1) of the Constitution-Thus, every citizen, every religious denomination, and every linguistic and religious minority, have a right to establish, administer and maintain and educational institution of his/is choice under Articles 19(1)(g), 26 and 30(1) of the Constitution of India, which includes the right to choose the medium of instruction. citizen shall be denied admission to an educational institution only on the ground of language as stated in Article 29(2)of the Constitution of India. The Government policy introducing Kannada as first language to the children whose mother tongue is Kannada is valid., The policy that all children, whose mother tongue is not Kannada, the official language of the State, shall study Kannada language as one if the subject is also valid. The Government policy to have mother tongue or regional language as the medium of instruction at the primary level is valid and legal, in the case of schools run or aided by the State. But, the Government policy compelling children studying in other Government recognized schools to have primary education only in the mother tongue or the regional language is violative of Article 19(1)(g), 26 and 30(1) if the Constitution of India.

       CONSTITUTION OF INDIA - Articles 226 & 227: [Cyriac Joseph CJ, Mrs. Majula Chellur & N.Kumar, JJ] Government Policy - Scope of judicial review - Held, If the Government policy infringes upon or violates any fundamental rights guaranteed to the citizens of the country or is contrary to any statutory provisions or which is opposed to principles of natural justice or actuated with mala fides, then, in exercise of its power of judicial review the Court can review the said policy. When a policy framed runs against the constitutional provisions, the Court must as a part of its constitutional duty interfere with the said policy. In doing so, the Court will be discharging its constitutional obligations, maintaining equilibrium between the three wings of the State and maintaining the rule of law. The State can formulate regulations and impose them on unaided educational institutions as a condition precedent for granting recognition to the school. Such an institution will of course be subject to regulatory measures aimed at securing excellence in education and maintenance of proper academic standards, atmosphere and infrastructure and prevention of mal administration. However, under the guise of regulation, the State cannot prescribe 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. Then it directly infringes 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(20) 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 it void ab initio. Therefore, if the Government policy infringes a fundamental right, by means of judicial review, the courts can restrain the unconstitutional exercise of power by the Government. Hence, Clauses (2)(3)(6) and (8) of the impugned order in its application to schools other than schools run or aided by the Government is quashed. All the orders, endorsements, circulars, issued giving effect to the aforesaid clauses (2) (3) (6) and (8) in the impugned order are also quashed. Rest of the Government Order is upheld.

       CONSTITUTION OF INDIA - Article 350A: [Cyriac Joseph CJ, Mrs. Manjula Chellur & N.Kumar, JJ] Facilities for Instructions in Mother Tongue at Primary Stage -Importance of Mother Tongue in Primary Education- Held, It is the mother tongue which is best suited, at the tender age, to acquire and develop literary skills, that enable fuller participation in learning activities. Studies have shown that the students learn better through their mother tongue. It creates a positive, non-threatening learning environment. It helps them to express themselves with clarity and to think with precision and vigour. Therefore, the first energies of the child should be directed to the through mastering of mother tongue. A child’s right from its birth grows amidst the atmosphere of its mother tongue. Learning in the mother tongue has cognitive and emotional value. Therefore, there is no two opinion worldwide regarding the utility and importance of the mother tongue being the medium of instruction at the primary level of education. The way Article 350-A is worded makes it very clear that it is not justifiable in a Court of law. It only deals with facility for primary education in mother tongue to children belonging to linguistic majority groups. It does not deal with or refer to the major group in the State. By this Article, an obligation was cast upon every State and every local authority within the State to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups. The responsibility of securing such education was entrusted to the President of India. In other words, the said constitutional right was not made a justifiable right in a Court of law and the power to compel the State to perform its obligation was left to the discretion of the President of India. Therefore, the argument that when the State is under an obligation to provide primary education in mother tongue under Article 350-A, it has the power to prescribe mother tongue as the only medium of instruction is without any substance. Such a power is not conferred either under Article 350-A or under any provision of the Constitution on the State. It is nothing to do with the Government Policy to have medium of instruction in the mother tongue. Therefore, Article 350-A of the Constitution confers a right only on the linguistic minorities only to insist on providing facilities for primary education in their mother tongue, but no right or power is conferred on the State to impose its policy on the linguistic minorities. The State cannot by virtue of this provision compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary school. No such right is conferred on the State by this provision and such a right do not flow from this Article.