Judges/Coram: R.M. Lodha, C.J.I., A.K. Patnaik, S.J. Mukhopadhaya, Dipak Misra and F.M. Ibrahim Kalifulla, JJ.

Facts:

The Government of Karnataka issued a Government Order dated 19.06.1989 prescribing that "from 1st standard to IVth standard, mother tongue will be the medium of instruction". On 22.06.1989, the Government of Karnataka issued a corrigendum and substituted the aforesaid words with from 1st standard to IVth standard, where it is expected that normally mother tongue will be the medium of instruction.

The orders dated 19.06.1989 and 22.06.1989 were challenged before Supreme Court and a Division Bench of this Court in English Medium Students Parents Association v. State of Karnataka and Ors, MANU/SC/0410/1994 held that the two orders of the Government of Karnataka were constitutionally valid.

Thereafter, the Government of Karnataka issued a fresh order dated 29.04.1994 providing the language policy to be followed in primary and high schools with effect from the academic year 1994-1995.

Clauses 2 to 8 of the policy stated that medium of instruction should be mother tongue or Kannada with effect from the academic year 1994-1995 in all Government recognized schools in classes I to IV and the students can be permitted to change over to English or any other language as medium of their choice from class V. The Government Order dated 29.04.1994, however, clarified that permission can be granted to only those students whose mother tongue is English, to study in English medium in classes I to IV in existing recognized English medium schools.

Aggrieved by the clauses of the Government Order dated 29.04.1994, the Associated Management of Primary and Secondary Schools in Karnataka filed Writ Petition before the High Court.

A Full Bench of the Karnataka High Court heard the writ petition and accordingly allowed the writ petitions while quashing clauses 2, 3, 6 and 8 of the Government order dated 29.04.1994 in their application to schools other than schools run or aided by the Government but upheld rest of the Government order dated 29.04.1994.

Aggrieved by the judgment, the State of Karnataka and the Commissioner of Public Instruction, Bangalore, have filed Appeals. As the judgment of the Full Bench of the High Court was not implemented for more than a year, a Division Bench of the High Court passed an order in Writ Appeals asking the Government of Karnataka to comply with the judgment of the Full Bench of the High Court.

A learned Single Judge of the Karnataka High Court directed the State of Karnataka in a Writ Petition filed before it to grant permission to an institution to run English medium school from 1st standard to 4th standard. The order of the Single Judge was challenged before the Division Bench of the High Court in Writ Appeal which was dismissed by saying that the order of the Full Bench of the High Court in Associated Management of Primary and Secondary Schools in Karnataka v. The State of Karnataka and Ors. has not been stayed by this Court in the Special Leave Petition Under Article 136 of the Constitution. Being aggrieved, the State of Karnataka has filed Special Leave Petition. All these matters were heard by a Division Bench of this Court and the Division Bench passed an order referring the few questions for consideration by the Constitution Bench.

Issues:

(i) What does Mother tongue mean? If it referred to as the language in which the child is comfortable with, then who will decide the same?

(ii) Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?

(iii) Does the imposition of mother tongue in any way affect the fundamental rights Under Article 14, 19, 29 and 30 of the Constitution?

(iv) Whether the Government recognized schools are inclusive of both government-aided schools and private & unaided schools?

(v) Whether the State can by virtue of Article 350A of the Constitution compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary schools?

Contentions:

State of Karnataka

(i) The State Reorganization Commission, 1955 in its report has referred to the resolution adopted at the Provincial Education Ministers' Conference held in August, 1949 that the medium of instruction and examination in the junior basic stage must be the mother tongue of the child and that the mother tongue of the child will be the language declared by the parent or guardian to be the mother tongue. He submitted that this resolution adopted at the Provincial Education Ministers' Conference held in August, 1949, has been approved by the Government of India and now serves as a guide for the State Governments in making arrangements for the education of the school-going children in the respective States.

(ii) After the report of the State Reorganization Commission, 1955, Article 350A has been introduced in the Constitution providing that it shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to a linguistic minority group.

(iii) In this background, the Government order dated 29.04.1994 was issued by the Government of Karnataka prescribing that the medium of instruction for children studying in classes I to IV in all primary schools recognized by the Government will be mother tongue or Kannada from the academic year 1994-95.

(iv) The High Court was not right in coming to the conclusion that the right to freedom of speech and expression guaranteed Under Article 19(1)(a) of the Constitution includes the right to choose a medium of instruction and that in exercise of this right, it is a fundamental right of the parents and the child to choose a medium of instruction in the primary schools.

(v) Similarly, the High Court was not right in coming to the conclusion that the right to establish and administer an educational institution Under Articles 19(1)(g) and 26 of the Constitution will include the right to choose a medium of instruction.

(vi) In any case if the State takes a policy decision that the medium of instruction for the children studying in classes I to IV will be their mother tongue, such a policy decision of the State Government will be within the regulatory powers of the State.

(vii)Under Article 162 of the Constitution, the State Government has executive powers co-extensive with its legislative powers and therefore the Government order dated 29.04.1994 prescribing that the medium of instruction of all children studying in classes I to IV will be mother tongue was well within the powers of the State Government. Even if it is held that children and parents have a right to choose a medium of instruction for classes I to IV or that citizens who have established schools have a fundamental right Under Article 19(1)(g) of the Constitution to choose the medium in which education will be imparted to the children studying in their schools, the State could restrict their right by virtue of its regulatory powers and prescribe that a medium of instruction for children studying in classes I to IV will be their mother tongue.

(viii) The High Court was again not right in coming to the conclusion that the Government policy compelling children studying in schools recognized by the Government to have primary education only in mother tongue or the regional language is violative of Article 30(1) of the Constitution. So long as the State permits a medium of instruction to be the same as the language of the minority community which has established the educational institution, the fundamental rights Under Article 29(1) and 30(1) of the Constitution are not violated because the purport of Articles 29(1) and 30(1) of the Constitution is to promote the language of every community including the language of a linguistic minority.

(ix) The Government Order dated 29.04.1994 prescribing that the medium of instruction for all children studying in classes I to IV in primary schools in the State of Karnataka would be the mother tongue of the children is a regulatory measure and satisfies the test of reasonableness.

(x) Article 21A of the Constitution is titled 'Right to Education' and provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Article 21A is thus the sole depository of the right to education and it is not open for any citizen to invoke any other fundamental right like Article 19(1)(a) or Article 21 to contend that he has a right to be educated in a medium of instruction of his choice.

(xi) Parliament has made the Right of Children to Free and Compulsory Education Act, 2009 Under Article 21A of the Constitution, and Section 29(2)(f) of this Act provides that the medium of instruction shall, as far as practicable, be the child's mother tongue. The High Court was, therefore, not right in coming to the conclusion that the right to choose a medium of instruction is implicit in the right to education Under Articles 21 and 21A of the Constitution.

Respondents who support the Government order dated 29.04.1994

(i) Mother tongue is the language in which the child is the most comfortable. The only caution that the State has to exercise is that by imposing such Regulations the minority character of the institutions is not destroyed. Accordingly, if the State Government has issued the order dated 29.04.1994 Under Article 162 of the Constitution prescribing that the medium of instruction for all children studying in classes I to IV would be mother tongue, such an order being regulatory in nature and not affecting the minority character of the institutions, does not in any way affect the right guaranteed Under Article 30(1) of the Constitution. The conclusion of the High Court that the Government Order dated 29.04.1994 insofar as it compels minority institutions to adopt medium of instruction for students studying in classes I to IV as mother tongue is violative of right Under Article 30 of the Constitution, therefore, is not correct.

(ii) Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression to all citizens and the only restrictions that the State can impose on this right are those mentioned in Article 19(2) of the Constitution. Reading of Article 19(2) of the Constitution will show that it empowers the State to make law imposing reasonable restrictions in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, but does not empower the State to impose reasonable restrictions in the interest of general public. If the right to freedom of speech and expression is interpreted so as to include the right to choose the medium of instruction, the State will have no power to impose any reasonable restrictions in the larger interests of the State or the nation on this right to choose the medium of instruction and such an interpretation should be avoided by the Court.

Respondents who challenge the Government order dated 29.04.1994

(i) Under Article 350A of the Constitution, the State has no power to compel any educational institution to adopt mother tongue as the medium of instruction. Article 350A of the Constitution only casts a duty on every State and every local authority within the State to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups, and does not empower the State to interfere with right to freedom of speech and expression and the right to establish and administer schools Under Article 19 of the Constitution.

(ii) The right to freedom of speech and expression will include the right to choose the medium of instruction in which the child is to be educated and the High Court was, therefore, right in coming to the conclusion that compelling a child to be educated through a particular medium of instruction, such as his mother tongue, is violative of his right Under Article 19(1)(a) of the Constitution.

(iii) Article 30(1) of the Constitution confers on religious and linguistic minority communities the right to establish and administer educational institutions of their choice and the word "choice" clearly indicates that the State cannot compel an institution established by a religious or linguistic minority to impart education in their institution to the children of classes I to IV only in the mother tongue of the children.

(iv) Even the educational institutions which have not been established by a religious or linguistic minority have a right to freedom Under Articles 19(1)(g) and 26 of the Constitution and in exercise of this right, they have a right to choose the medium of instruction in which they want to impart education to their students.

Analysis:

Meaning of Mother Tongue

(i) The expression 'mother tongue' in Article 350A means the mother tongue of the linguistic minority group in a particular State and this would obviously mean the language of that particular linguistic minority group.

(ii) Therefore, mother tongue in the context of the Constitution would mean the language of the linguistic minority in a State and it is the parent or the guardian of the child who will decide what the mother tongue of child is. The Constitution nowhere provides that mother tongue is the language which the child is comfortable with, and while this meaning of "mother tongue" may be a possible meaning of the 'expression', this is not the meaning of mother tongue in Article 350A of the Constitution or in any other provision of the Constitution and hence, one cannot either expand the power of the State or restrict a fundamental right by saying that mother tongue is the language which the child is comfortable with.

Right to choose a medium of instruction at primary stage

(i) The freedom of speech and expression will include the right of a child to be educated in the medium of instruction of his choice, the only permissible limits of this right will be those covered under Clause (2) of Article 19 of the Constitution, Thus, no one can exclude such right of a child from the right to freedom of speech and expression only for the reason that the State will have no power to impose reasonable restrictions on this right of the child for purposes other than those mentioned in Article 19(2) of the Constitution.

(ii) Under Articles 21 and 21A of the Constitution, a child has a fundamental right to claim from the State free education upto the age of 14 years. The language of Article 21A of the Constitution further makes it clear that such free education which a child can claim from the State will be in a manner as the State may, by law, determine. If, therefore, the State determines by law that in schools where free education is provided Under Article 21A of the Constitution, the medium of instruction would be in the mother tongue or in any language, the child cannot claim as of right Under Article 21 or Article 21A of the Constitution that he has a right to choose the medium of instruction in which the education should be imparted to him by the State.

(iii) The High Court, thus, was not right in coming to the conclusion that the right to choose a medium of instruction is implicit in the right to education Under Articles 21 and 21A of the Constitution. Therefore, a child, and on his behalf his parent or guardian, has the right to choose the medium of instruction at the primary school stage Under Article 19(1)(a) and not Under Article 21 or Article 21A of the Constitution.

Imposition of mother tongue and fundamental rights under Article 14, 19, 29 and 30 of the Constitution

(i) Though the experts may be uniform in their opinion that children studying in classes I to IV in the primary school can learn better if they are taught in their mother tongue, the State cannot stipulate as a condition for recognition that the medium of instruction for children studying in classes I to IV in minority schools protected Under Articles 29(1) and 30(1) of the Constitution and in private unaided schools enjoying the right to carry on any occupation Under Article 19(1)(g) of the Constitution would be the mother tongue of the children as such stipulation. Thus, the imposition of mother tongue affects the fundamental rights Under Articles 19, 29 and 30 of the Constitution.

Whether the Government recognized schools are inclusive of both government-aided schools and private & unaided schools?

(i) From the law as developed by this Court in the precedents like Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors. and T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., it is clear that all schools, whether they are established by the Government or whether they are aided by the Government or whether they are not aided by the Government, require recognition to be granted in accordance of the provisions of the appropriate Act or Government order. Accordingly, Government recognized schools will not only include government aided schools but also unaided schools which have been granted recognition.

Whether the State can by virtue of Article 350A of the Constitution compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary schools?

(i) In Article 350A of the Constitution, it is provided that it shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups. It has already been held that a linguistic minority Under Article 30(1) of the Constitution has the right to choose the medium of instruction in which education will be imparted in the primary stages of the school which it has established. Article 350A therefore cannot be interpreted to empower the State to compel a linguistic minority to choose its mother tongue only as a medium of instruction in a primary school established by it in violation of this fundamental right Under Article 30(1). Thus, State has no power Under Article 350A of the Constitution to compel the linguistic minorities to choose their mother tongue only as a medium of instruction in primary schools.

Conclusion:

(i) Civil Appeal Nos. 5166-5190 of 2013, 5191-5199 of 2013, the Civil Appeal arising out of S.L.P. (C) No. 32858 of 2013 and Writ Petition (C) No. 290 of 2009 has been dismissed. There shall be no order as to costs.

Important Precedents:

(i) English Medium Students Parents Association v. State of Karnataka and Ors. MANU/SC/0410/1994

(ii) Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors. MANU/SC/0333/1993

(iii) T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. MANU/SC/0905/2002