General Secretary, Linguistic Minorities Protection Committee v. State Of Karnataka

Rama Jois, J.:—

In the first seven petitions, the petitioners representing Urdu, Marathi, Telugu and Tamil linguistic minorities in the State, have challenged the constitutional validity of the State Government's Order dated 20th July 1982, by which the study of Kannada was made a compulsory additional subject by children belonging to the respective linguistic minorities, who are having their primary education in mother-tongue from the first year of the primary school and as the sole first language, out of the three languages required to be studied in the High Schools and have prayed for its quashing and have also sought for the issue of appropriate consequential directions.

2. Having regard to the National and Constitutional importance of the question arising for consideration in these petitions, the matters were referred to Division Bench under Section 9 of the Karnataka High Court Act. The Division Bench in turn, referred questions relating to the constitutional validity of the Government Order, to Full Bench under Section 7 of the Act. Before the Full Bench, the contentions of the petitioners in these petitions was that having regard to the fundamental right guaranteed under Article 29 of the Constitution of India to the aforesaid linguistic minorities to conserve their language, read with Article 350A of the Constitution, which makes it obligatory for the State and local authorities to provide adequate facilities for instruction in mother-tongue at the primary stage of education and also having regard to the right guaranteed under Article 30 of the Constitution to them to establish educational institutions of their choice, they had the right to establish and run primary schools to impart primary education to their children in their mother-tongue, and therefore that part of the Government Order which prescribed the compulsory study of Kannada for children having their primary education in their mother-tongue from the first year of the primary school and as the sole first language in the high-schools, was violative of Articles 29 and 30, and also Article 14 of the Constitution. The Full Bench has answered the questions referred for its opinion in favour of the petitioners.1

3. In particular, in support of the contention that the primary education, in that the teaching in the first four years of the primary school, should be in the mother-tongue, the petitioners produced the opinion of various expert committees, reports and decisions taken at ministerial conferences and contended that there was no justification to introduce Kannada in addition to mother-tongue at that level. In the order of the Full Bench the relevant extracts of the opinions reports and decisions have been set out. On consideration of all these materials, the Full Bench accepted the contention of the petitioners that they had the fundamental right to have the primary education, that is, upto the first four years, in mother-tongue. The relevant portion of the Judgment are paragraphs 26, 27, 28 and 47 therein. They read:

“26. Thus, we can see that there is complete unanimity on the topic of primary education. The opinion is that the children must be provided with facility to have their primary education in their mother-tongue. As stated earlier, the State Reorganisation Commission attached great importance to this aspect of the matter in the context of establishment of linguistic States and it was firmly of the opinion that a constitutional duty must be cast upon each of the linguistic States to take steps for providing primary education in mother-tongue. It is in the light of this recommendation, Article 350A (extracted earlier) was incorporated into the Constitution, which casts an obligation not only on each of the State Governments but also on each of the local Authorities in each of the States to provide adequate facilities for instructions in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups. In view of this Article, it is urged that it is the constitutional obligation of each and every State and also local authorities to provide facility for primary education in mother-tongue in the schools established by them or aided by them though this obligation has to be discharged by the Government and Local Authorities when it is practicable and economically feasible having regard to the number of students belonging to any particular linguistic group getting admitted to any school established by the State or Local 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.

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. This aspect has been highlighted by Mathew, J. in St. Xavier's College v. State of Gujarat ((1974) 1 SCC 717 : AIR 1974 SC 1389). The relevant portion of the Judgments at paragraphs 141 and 142 reads:

141. The fundamental postulate of personal liberty excludes any power of the State to standardize and socialize its children by forcing them to attend public schools only. A child is not a mere creature of the State. Those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional obligations. See Pierce v. Society of Sisters of Holy Names, (1924) 268 US 510, 535.

142. The parental right in education is the very pivotal point of a democratic system. It is the touchstone of difference between democratic education and monolithic system of cultural totalitarianism.”

The State therefore should leave the option to have the primary education in mother-tongue to the parents and their children. The State cannot curtail that right and liberty.

28. Obviously, the children whose mother-tongue is the regional/official language of the State concerned and the children whose mother-tongue is a language other than that language, are dissimilarly situated in the matter of primary education. This is the unanimous opinion expressed by all, the Experts, Commissions and the Governments. The Constitution itself through Article 350-A has recognised this classification. Therefore, any act of the Government to compel all the children studying in primary schools of this State including those established by linguistic minorities to study Kannada apart from being irrational and arbitrary, it is also discriminatory and therefore violative of Article 14 of the Constitution of India.

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27. On giving our anxious considerations to the rival submissions and considering them in the light of the principles laid down by the aforesaid decisions of the Supreme Court, we are convinced that the Government Order in so far as it compels the children of linguistic minorities to study Kannada from the very first year of the primary education as against the unanimous opinions of various Commissions and Committees which have stated that children should not be burdened with an additional language in the lower primary school, is inconsistent with and an infringement of the fundamental right guaranteed under Articles 29 and 30 of the Constitution for three reasons:

First they are not regulatory in character, but constitute an infringement. Secondly, they are not in the interests of the minority, for it is an accepted principle that it is in the interests of children to have primary education in mother-tongue. Third, that choice under Article 30 in the matter is of the minority groups themselves, which as held by the Supreme Court, is absolute.”

4. From the Full Bench Judgment, it is clear that the State is under a duty to provide lower primary education upto first four years in mother-tongue and therefore it should ensure that primary education upto fourth standard, whether it is in Government Schools or private schools recognised by the Government, whether aided or not aided, whether established by linguistic minorities or otherwise, should be in mother-tongue if the prescribed number of children having a particular language as their mother-tongue get admitted to any of these 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.

5. These petitions have now come up for hearing and have to be disposed of in accordance with the opinion of the Full Bench and therefore have to be allowed.

6. Before doing so, it has become necessary to clarify a Judgment rendered by Bopanna, J. in Sahyadri Education Trust v. State Of Karnataka* . ILR 1988 KAR 2188. in which a Writ of Mandamus has been issued to the State Government to accord permission to the petitioners therein to start primary schools to impart primary education in English from the first standard and even in nursery schools. The decision was rendered in four Writ Petitions presented by four societies whose request to start primary and/or nursery school for imparting instruction in English language was rejected in view of a policy decision taken by the Government that no permission to start an English medium primary school should be given from the academic year 1987-1988. The main contention of the petitioners therein was that the refusal was discriminatory, for, such permission had been granted to a few other institutions and therefore violative of Article 14 of the Constitution. Copies of orders according such permission to others were produced in those petitions, which are referred to at pages 2198-2199 of the Report. The learned Judge held that the plea was well founded, in that, no uniform policy on the subject had been formulated and followed and therefore the rejection was violative of Article 14 of the Constitution and consequently issued a Writ of Mandamus directing the State Government to accord permission to the petitioners therein to start English medium primary school/nursery schools.

7. As stated earlier, the Full Bench has held that the impugned Government Order, which required the teaching of Kannada from the first year of primary school itself, was violative of Articles 14, 29 and 30 of the Constitution, accepting the plea of linguistic minorities that the primary education upto IV standard has to be in their mother-tongue, as that has been the unanimous opinion of all educational experts and the whole-some rational policy adopted by the State Government. Therefore, any plea that primary education should be in English would be inconsistent with the basis on which the Full Bench held that the impugned order was unconstitutional, as it would be a claim for totally substituting mother-tongue by English in first four years of primary school and wholly inconsistent with the plea of linguistic minorities in these petitions as also with the rational policy of imparting primary education upto IV standard in mother-tongue. Though the decision in Sahyadri Education Trust, was based on the plea of discrimination in the grant of permission, that is, that the permission was granted to a few applicants and not granted to the petitioners, there are certain obiter, observations which requires to be clarified as they would come in the way of the State Government issuing orders ensuring primary education upto 4th standard in the mother-tongue in conformity with the decision of the Full Bench.

8. For that purpose, it is necessary to set out a few relevant facts. The State of Karnataka was established with effect from 1-11-1956 bringing together all areas in which the majority of the people were Kannada speaking. Kannada is therefore the regional national language of this State. The State Government promulgated the Grant-in-Aid Code for primary schools in exercise of its executive power, by order dated 19-10-1969, as the topic was not covered by any legislation. Rule 12 of the said Code reads:

“12. MEDIUM OF INSTRUCTION: (i) In all primary schools, the medium of instruction shall ordinarily be the Regional Language or mother-tongue of the child.

(ii) With a view to creating facilities for the linguistic minorities provision shall be made for teaching their mother-tongue subject to the prescribed conditions.

English medium schools or English medium sections in the existing Primary Schools may be opened with the permission of the Director for the benefit of the following categories of students:

(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 from 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 the Director; and

(vii) An English medium school or class may be permitted to be started subject to the condition that the minimum strength of each Standard is 10 or 30 for standards I to IV taken together. For standards V to VII the minimum strength shall be 10 per standard.”

As can be seen from first part of the Rule, that is Rule 12(i) and (ii), the policy of imparting primary education in mother-tongue, which in majority of the cases happens to be the regional language, has been incorporated. The prescription that primary education should be in regional language or mother-tongue, is obviously for the reason that as pointed out in paragraph 14 of the Full Bench Judgment, children of permanent residents of the State also pick up the regional language from their childhood and it also practically becomes their additional mother-tongue. In fact, it is a matter of common knowledge that among the linguistic minorities representing Marathi, Urdu, Tamil and Telugu, a substantial section of them are residents of this State from a very long time and as a result they have practically adopted the regional language, that is, Kannada, as their second mother-tongue. Similar is the position of certain sections of the people of this State who have been permanently residing in this part of the Country, whose mother-tongue is a minor language like Tulu and Konkani. For children of such section of people, primary education in Kannada would be as good as in their mother-tongue. As held by the Full Bench, it is the unanimous opinion of all educational experts that primary education has to be in mother-tongue. The object is that imparting instruction at the primary level upto fourth standard, which necessarily includes pre-primary level, to the children in the mother-tongue, the language with which they communicate with their parents, members of family and the relatives, and the playfellows is most conducive, to the effective acquisition of knowledge, for, the children clearly think and grasp subjects without any difficulty and develop creative talent and develop their personality in natural environment if they are taught in their mother-tongue at that level. Therefore, Rule 12(i) and (ii) of the Grant-in-Aid Code which provides for imparting primary education in mother-tongue is whole-some and has a rational basis. It is in the interest of excellence in education and in the interest of linguistic minorities, who are the petitioners in these Writ Petitions and who have established primary schools for imparting instruction at that level in mother-tongue. In fact, it has been their sheet anchor in challenging the impugned Government Order. The Full Bench has upheld their right to have the first four years of primary education in their mother-tongue and that Kannada, the regional and official language of the State, also should not be brought in at that stage. It is also well settled, by the decisions of the Supreme Court referred to in the Full Bench decision, that any reasonable regulatory provision intended to ensure excellence in education as also a regulation which is in the interest of linguistic minorities themselves, would not be violative of Articles 29 and 30. In fact, Rule 12(i) and (ii) ensures the development of the language of the linguistic minorities by providing that the primary education shall be in the mother-tongue. In fact, the basis of challenge of the petitioners to the impugned Government Order is consistent with and receives support from Rule 12(i) and (ii) of the Grant-in-Aid Code.

9. The second part of Rule 12 of the Grant-in-Aid Code provides for according permission to start English medium primary school under circumstances stated therein. From the facts stated in Sahyadri Education Trust it appears that the State Cabinet had taken a policy decision not to accord permission to English medium primary schools from the academic year 1987-1988, which is extracted at pages 2200 and 2201 of the Report, in that decision again it was stated that in rare cases English medium schools may be permitted. After that decision, as stated in the Judgment, while permission was accorded to a few to start English medium primary schools, permission was refused to the petitioners therein and no statement of objection was filed specifying the reasons for rejection and the Government only relied on the Cabinet policy, and therefore the refusal was held to be violative of Article 14 of the Constitution. The relevant portion of the Judgment reads:

“But in this case, when there is no formulation of policy at all either under Statute or based on expert opinion, the decision taken by the Cabinet on the ground of policy could be examined and tested by this Court on the touch stone of Articles 14 and 19(1)(g) of the Constitution. As noticed earlier, if there had been a policy, it should be applicable to all the primary schools in the State. But in the absence of uniform application of that policy, the same is open to question before this Court and could be laid bare for the scrutiny of this Court and I am of the view that the decision of the State Government based on a policy decision which is neither uniform nor based on an objective consideration of the rights of linguistic minorities is violative of Article 14 of the Constitution and on that ground alone, it has to be struck down.”

(Underlining by us)

Thus, the learned Judge decided the case on the ground that no uniform policy applicable to all primary schools in the State had been applied, and thereby the petitioners therein were discriminated against in violation of Article 14 of the Constitution. Therefore, it is confined to the facts of that case and does not come in the way of the State Government giving effect to the policy of according permission to start primary schools with the condition that instruction in such primary schools upto fourth standard should be imparted in mother-tongue only if the prescribed number of children having a common mother-tongue get admitted to any of the schools, uniformly.

10. In the Sahyadri Education Trust Case, the learned Judge has observed that such a uniform provision can be made only by Legislation. Relevant portion of the Judgment reads:

“So, from these provisions of the Constitution and the Code this Court could proceed on the basis that the Constitution does not envisage unless otherwise in the exercise of the powers conferred on the State Legislature (as education is a concurrent subject), the State Legislature makes the necessary legislative provisions for imparting education only in Kannada and not in English. Whether such legislation could be made without violation of Articles 14 and 19(1)(g) may arise for consideration. But, that does not trouble us in these petitions since it is common ground that no such legislation is made by the State Government as regards medium of instruction in primary/nursery schools. The State Government, as noticed earlier, rests its case only on the cabinet policy, which finds a place, in Rule 12(1) of the Code. Rule 12(1) reads as under:

“In all Primary Schools, the medium of instruction shall ordinarily be the Regional language or mother tongue of the child.”

This view with great respect, is inconsistent with the ratio of the decision of the Supreme Court in Rai Saheb Ram Jawaya v. State of Punjab . AIR 1955 SC 549. and also in State of M.P v. Kumari Nivedita Jain.4 In both these decisions, the Supreme Court has held that the executive power of the State under Article 162 of the Constitution being co-extensive with that of the legislative power, in the absence of legislation, that is, when the particular field is not occupied by Legislation, executive can act. These decisions were not brought to the notice of the learned Judge in Sahyadri Education Trust Case. When these decisions were brought to the notice of the same learned Judge in the case of Muniyappa v. State of Karnataka,5 in which an amendment to the Grant-in-Aid Code for Teachers Certificate Higher Course was made by way of altering the qualification for admission to the course, by an executive order, was challenged on the ground that the executive had no competence to make such regulation and could have been made only by legislation, it was negatived, relying on the aforesaid two decisions of the Supreme Court. The relevant portion of the Judgment of the Supreme Court in Nivedita Jain's case on which the learned Judge relied and negatived the said contention in Muniyappa's cases reads:

“Under Article 162 of the Constitution the Executive Power of a State, therefore, extends to the matter with regard to which the legislature of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to medical colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regard.”

9. In my view, the ratio of this case is applicable propriovigore to the facts of these cases. The minimum qualification of SSLC prescribed earlier by the State Government was not pursuant to any legislative provision. That was made under the Grant-in-Aid Code a non-statutory provision. So it is open to the Government to substitute that regulation by a new regulation prescribing a higher qualification in the interest of raising the educational standards pursuant to the National Policy of Education evolved by the Ministry of Human Resources.”

Therefore, with respect, we clarify that the observation in Sahyadri Education Trust that the State could regulate primary education only by Legislation, being contrary to the law declared by the Supreme Court and applied in Muniyappa's case, does not state the law correctly and therefore it is competent for the State Government to give effect to the Full Bench decision and the orders made in these petitions as also the Cabinet policy of permitting primary schools upto the fourth standard only in mother-tongue uniformly, by issuing appropriate orders, for, it is also clear that an executive order can be amended by any subsequent executive order. We also clarify that Rule 12(1) was part of the Grant-in-Aid Code promulgated in 1969 and it incorporated a general policy of imparting primary education in mothertongue which is in conformity with expert opinion and resolutions extracted in the order of the Full Bench and it was not introduced pursuant to the Cabinet Policy evolved in 1987, as stated in para 11 of the Judgment in Sahyadri Education Trust case, relevant portion of which is extracted earlier.

11. It is also necessary to observe that the view expressed in Sahyadri Education Trust at paragraph 16 of the Judgment that orders refusing permission to start English medium schools, was violative of Article 19(1)(g) and 19(1)(a) of the Constitution was unnecessary for a decision in that case, as the case was decided solely on the ground of violation of Article 14, on the ground that applications of others for starting English medium primary schools had been granted, whereas the application of the petitioners therein were rejected. As pointed out in the Full Bench Judgment relying on the several decisions of the Supreme Court, that any regulation which is reasonable, which is in the interest of excellence in education, which is in the interest of minorities, constitutes no infringement of Article 30 of the Constitution, which confers right on linguistic as well as religious minorities to establish educational institutions of their choice. A regulation which requires the imparting of pre-primary and primary education upto 4th 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 the linguistic minorities, who are the petitioners, some of whom are also religious minorities, that they have the right to impart instruction in primary schools in their respective mother-tongue and that is also necessary to protect their right to conserve and develop their language under Article 29 of the Constitution. From this it follows that the right to establish primary schools claimed by minorities or non-minorities under Article 14 or Article 19, also being subject to reasonable regulation made in the interest of excellence in education, would not be violated by a provision which requires the imparting of instruction upto fourth year of primary school in the mother-tongue of the children. In fact, in Sahyadri Education Trust case, the learned Judge has stressed about the obligation of the State to impart primary education in mother-tongue:

“While Article 45 provides for the constitutional goal of free and compulsory education from 10 years of the commencement of the Constitution, Article 350A provides the rights of the linguistic minorities as regards their medium of instruction at the primary stage of education. A combined reading of these 2 provisions would indicate that the Constitution does not empower the State Government to thrust the language of the majority group as the medium of instruction for the children belonging to linguistic minority groups at the primary stage. Specific care has to be taken to teach students of minority groups at the primary stage of education in the mother-tongue of the students belonging to linguistic minority group.”

(Underlining by us)

Hence, we clarify that it is open to the State Government to implement its policy of permitting primary schools upto fourth year, in mother-tongue uniformly and without any discrimination.

12. Now coming to Writ Petition No. 1006 of 1983, it is a petition presented by an Association entitled English Medium Students Parents' Association, Belgaum, represented by its President Sri Madhava Rao Atnikar. In this petition, the only prayer made is for quashing the impugned Government Order. But the basis of the Writ Petitions is entirely different from those made out in the seven Writ Petitions dealt with above. The relevant portion of the Writ Petition reads:

“1. The petitioner is the English Medium Students Parents' Association at Belgaum, a registered Society. There are about 2000 students studying in the Ist standard in the several schools mentioned in the schedule hereunder, whose parents are members of the petitioner - Association. Out of them 7 schools are run by Christians who constitute a religious minority. These schools have been teaching English to the students from the Ist standard.

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Grounds

a) The G.O under Annexure-A and the Circular under Annexure-B, in so far as they displace English as the first language in the schedule mentioned Primary Schools is violative of Article 29(1) of the Constitution. Amongst the parents that the petitioner-Society represents, there are about 700 to 800 Christian pupils whose mother tongue is English. They speak English only in their homes. They have adopted the western culture. Belgaum, it may be noted, is a Cantonment Area. This G.O and the Circular affects these children whose mother tongue has become English. They are entitled to protection under Articles 29 and 30 of the Constitution.”

The claim of the petitioners based on Articles 29 and 30 has been dealt with in the Full Bench Judgment at paragraph 52 at pages 550 and 551, which reads:

“52. xxxxxxxxx

In this petition, it is averred that amongst the parents, the petitioner represents 700 to 800 Christian whose mother-tongue is English. It is well known and was not disputed that English is the mother-tongue of only Anglo Indians who constitute a microscopic minority in the Country and that the mother-tongue of all Indian Christians is their own original language and not English. Nevertheless the aforesaid averment is made in the petition. The learned Counsel was unable to substantiate that the mother-tongue of the 700 to 800 christian parents who are Members of the petitioner-Association, was English. Therefore, they cannot claim any right under Articles 29 or 30 of the Constitution for having primary education in English.”

Therefore, this petition is liable to be dismissed.

13. We, however, make it clear that all the members of the petitioner-association in W.P 1006/83 including Christians shall be entitled to the benefits flowing from the order made in the first seven petitions and they shall have the same protection regarding their respective mother-tongues in primary education and in the matter of selection of first language in the high schools.

14. In the result, we make the following order:

I. In W.P Nos. 28566 and 28567/1982, 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 and ensure that primary education upto 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 recognised, whether receiving financial aid or not, subject to the existence of the prescribed minimum number of children having a common mother-tongue who have got themselves admitted to the school concerned; and

(b) to leave the choice of selecting the first language for study in the High Schools to the students;

(iv) The Government shall, however, be at liberty:

(a) to introduce Kannada as one of the two languages from that primary school class from which study of another language in addition to mother-tongue is made obligatory as part of the general pattern of primary education; and

(b) to make study of Kannada compulsory as one of the three languages for study in secondary schools, by making appropriate order or Rules, and make it applicable to all those whose mother-tongue is Kannada and also to linguistic minorities who are and who become permanent residents of this State, in all primary and secondary schools respectively, whether they are Government or Government recognised, including those established by any of the linguistic minorities.

II. In W.P No. 1006 of 1983:

The Writ Petition is dismissed, subject to what is stated in paragraph 13 of this order.