The imposition of Marathi as a compulsory language on schools belonging to all sections of the population at the cost of other mother tongues (modern Indian languages) and/or the national language, Hindi, is—
(a) per se an arbitrary, oppressive, anti-nationalistic and retrograde step; and
(b) a patently discriminatory measure violative of Article 14 of the Constitution on both the counts, i.e, (i) arbitrariness as well as (ii) discrimination.
1. The three-language formula
1.1 The “three-language formula” adopted for the country under the Report of the Education Commission, 1964-66 appointed by the Government of India and consisting of top educational experts of the country carries a rule and recommendation against imposition of—
(i) a third language as compulsory for Standards V to VII (upper primary), and
(ii) a fourth language as compulsory for Standards VIII to X (secondary)
1.2 No other language can be thrust or imposed as a compulsory third language in Standards V to VII or a compulsory fourth language in Standards VIII to X. Such an imposition would ipso facto interfere with the proper education and development of the child.
1.3 Quantitatively, the students cannot go on piling up languages beyond the three-language formula as it would interfere with proper study of the other subjects. Qualitatively, the addition of a fourth language, even by way of encroachment to the extent of 50% on the 100% examination paper in any one of the three languages, would amount to a dilution of both the languages. This would be per se detrimental to the proper and healthy development of the child and, hence, not reasonable.
2. The State's personality
2.1 Article 1 of the Constitution provides that “India … shall be a Union of States” and “The States and the territories thereof shall be as specified in the First Schedule.”
2.2 Under the Constitution, none of the States in the Union of India is endowed with a “religious, linguistic, regional or sectional” character. Every State is constitutionally required to maintain an areligious, alinguistic, aregional and asectional character and a neutral personality vis-à-vis the majority population and minorities residing in the State.
2.3 Even a citizen of India has a fundamental duty vide Article 51-A(e) and (f) “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending all religious, linguistic and regional or sectional diversities” and “to value and preserve the rich heritage of our composite culture”. That duty must apply with greater force to every State.
2.4 The State, therefore, is not expected under the Constitution to align or identify itself with the language, script or culture of any section of the people residing in it, whether majority or minority. Such alignment or identification is both anti-national and unconstitutional and may have serious repercussions because persons belonging to the linguistic majority in one State may get persecuted in other States where they are in a minority.
2.5 Every State is under a constitutional obligation to treat all sections, all languages and all mother tongues in India with equal respect and provide them equal protection against each other.
2.6 In brief, in the matter of education every State has the duty of providing to both — the majority as well as the minority segments of its population — equal and similar opportunities—
(a) to learn and “conserve” their respective mother tongues;
(b) to learn and promote Hindi, the official language under Article 343 read with Article 351;
(c) to receive education in English, the associate official language of the Union under Article 343 and means of international communication.
2.7 The unabashed defence by the State in the present case that imposition of Marathi on non-Marathis is necessary to “assimilate” the non-Marathis into the Marathi regional language, culture etc. is per se contrary to the aforesaid constitutional principles and values and ultra vires Article 14 of the Constitution of India.
3. Discrimination between Marathi and non-Marathi students
3.3 What the Marathi language is to the Marathi student of the State of Maharashtra, his own mother tongue is to the non-Marathi student of that State. The two students cannot be treated at par by the imposition of Marathi language upon the non-Marathi student. True equality (equality in fact) will be brought about only by permitting each student to learn his own mother tongue.
3.4 Under the national programme there is a three-language formula adopted in all schools in the country. Whereas the Marathi student continues to have the facility of the combination of three languages, viz., his mother tongue, Hindi and English, the non-Marathi student is denied a similar facility. There is hostile discrimination. (For adverse effects of such discrimination, kindly see WP — Grounds I, II, XV etc.)
3.5 The imposition of Marathi as a compulsory language causes severe prejudice to the non-Marathi student in the State of Maharashtra in the following ways:
(i) in the English-medium school — by the total or partial deprivation of the right to learn mother tongue or Hindi;
(ii) in the Hindi-medium school — by the total deprivation of the right to learn mother tongue;
(iii) in the mother-tongue-medium school − by the total or partial deprivation of the right to learn Hindi.
4. Arbitrariness as to the city of Bombay
4.1 The present writ petition involves, in particular, schools located in the city of Bombay. For long, Bombay by itself has had a majority of non-Marathis. In particular, the Gujarati presence has been no less than the Marathi. The non-Marathi-speaking population in Bombay constitutes the majority (60 to 65%) as compared to the Marathi-speaking population (35 to 40%) (WP, paras 5.3 to 5.6, 5.11 to 5.15).
4.2 The Linguistic Provinces Commission in its Report (1948) concluded that Bombay was not a unilingual area but a bilingual and multilingual area, that it should neither be allocated to the Marathi-speaking or to the Gujarati-speaking region, that it was a highly heterogeneous and cosmopolitan city with people having common economic and other pursuits, in spite of linguistic differences, that the city was of particular significance to the country in the industrial, commercial and financial sense, and that, therefore, the future of Bombay should be decided keeping in mind the best interests of India and its own interest. The Commission also opined that if Bombay were given to any linguistic group, the said group would start treating the city as its own “homeland” and discriminatory against the linguistic minorities settled therein as aliens and outsiders and there would be constant intolerance, hostility and anti-national activity. (Commission's Report at WP, Ann. A, p. 81.)
4.3 The imposition of Marathi on schools even in Bombay regardless of the interests of the majority of the population in Bombay (i.e, non-Marathis), interests of the country and interests of Bombay itself is per se arbitrary, unreasonable and violative of Article 14 of the Constitution.
Proposition 3
The abrogation, dilution and/or deprivation of the opportunity to learn mother tongue and/or the national language Hindi, as a part of one's curriculum at school on account of the imposition of Marathi as a compulsory language, is violative of the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.
3. The compulsory imposition of Marathi language on a non-Marathi student has a direct and immediate adverse effect on his fundamental right to the freedom of speech and expression as delineated above.
4. The compulsory imposition of Marathi language is neither a reasonable restriction nor is it meant to serve any of the purposes mentioned in Article 19(2), viz., “the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. No other purpose is permitted as a valid purpose for restriction on the freedom of speech and expression.
— Sakal Papers v. UOI, (1962) 3 SCR 842 (pp. 862-863, 867-868)
— Bennet Coleman v. UOI, (1972) 2 SCC 788 (paras 41, 42, 43, 84)
— Bijoe Emmanuel v. St. of Kerala, (1986) 3 SCC 615 (para 17)
— Secy, MIB v. Cricket Asson, (1995) 2 SCC 161 (paras 44, 45)
Proposition 4
The imposition of Marathi as a compulsory language at the cost of learning one's mother tongue or the national language Hindi, is violative of the fundamental right to reside and settle in any part of the territory of India guaranteed by Article 19(1)(e) and to carry on any occupation or business guaranteed by Article 19(1)(g) of the Constitution.
3. The aforesaid action amounts to penalising the non-Marathis who have decided to reside and settle in Maharashtra. It allows them to reside and settle in Maharashtra only on learning Marathi at the cost of their mother tongue or Hindi. They cannot exercise their fundamental right to reside and settle in Maharashtra under Article 19(1)(e) unless they subscribe to the said policy and action of the Government of Maharashtra. Such policy and action amounts to an unreasonable restriction on the said fundamental right. Hence, it is unconstitutional and void.
4. A non-Marathi born in Maharashtra may be deeply interested in the study including higher study, of his mother tongue language and literature in order to make a career as a teacher or writer or author or software developer in that field. He may also want to do so in conjunction with English and Hindi both for facilitating his education as well as national, comparative and practical considerations. The impugned action which deprives him in such pursuits would amount to an unreasonable restriction on his fundamental right to carry on his occupation or business under Article 19(1)(g) and is unconstitutional and void.
Proposition 5
The compulsory imposition of Marathi language together with the denial of an adequate and complete opportunity to learn one's own mother tongue and/or the national language Hindi, amounts to deprivation of the fundamental right of the child as well as the parents
(a) to life and personal liberty;
(b) to knowledge and to education;
(c) to protection of tradition, culture and heritage guaranteed by Article 21 of the Constitution.
1.1 It is well settled now that the fundamental right to life and personal liberty under Article 21 includes within itself a child's
(a) right to knowledge,
(b) right to education,
(c) right to tradition, culture and heritage, etc.
—Gobind v. State of M.P, (1975) 2 SCC 148 (paras 13, 19, 20, 22, 24, 25)
—Reliance Petro. v. Indian Express, (1988) 4 SCC 592 (para 34)
—Ramsharan Autyanprasi v. UOI, 1989 Supp (1) SCC 251 (para 13)
—Unnikrishnan v. State of A.P, (1993) 1 SCC 645
Jeevan Reddy, J. at paras 142, 149, 165 to 171
Mohan, J. at paras, 10, 29, 30, 31, 32, 38, 39
1.2 Article 21 correspondingly also involves the liberty of the parents, i.e, the parents' natural right coupled with high duty “to recognise and prepare the child for additional obligations” and “to give (him) education suitable to their station in life”.
—Pierce v. Society of the Sisters, 268 U.S 510 (1925) : 69 L.Ed 1070 (1078)
—Meyer v. Nebraska, 262 U.S 390 (1923) : 67 L.Ed 1042 (1045-46)
—Bartels v. Iowa, 262 U.S 404 (1923) : 67 L.Ed 1047
—St. Xaviers v. St. of Gujarat, (1975) 1 SCR 173 (255B-256G)
2. The imposition of Marathi language together with the denial of an adequate and complete opportunity to learn one's own mother tongue and/or the national language Hindi, amounts to deprivation of the child's as well as the parents' right included within the fundamental rights to life and personal liberty under Article 21.
3. In fact, the State is under a constitutional obligation under Article 21 to ensure the existence of such circumstances and facilities as are necessary for a fair and healthy exercise of the fundamental right. (In this regard see, in particular, the directive principles contained in Articles 38(2), 39(f), 41 and 45).
—Olga Tellis v. Bombay Muni. Corpn, (1985) 3 SCC 545 (para 32)
—Unnikrishnan v. State of A.P, (1993) 1 SCC 645 (paras 19, 21)
Proposition 6
The imposition of Marathi as a compulsory language along with denial of an adequate and complete opportunity to learn one's own mother tongue (language) and national language Hindi, is contrary to the constitutional scheme and rights envisaged in the various provisions of Part XVII and Articles 120 and 210 of the Constitution and, hence, unconstitutional and void.
The Judgment of the Court was delivered by
S. Rajendra Babu, C.J
Writ Petition (Civil) No. 132 of 1995
1. This petition stems from a policy decision made by the Maharashtra State Government whereby Marathi language study was made compulsory throughout the schools in that State. As a result, the English-medium schools run by Gujarati linguistic minorities were compelled to teach four languages (Hindi, English, Marathi and mother tongue Gujarati) as against the accepted “three-language formula”. Constitutional validity of the imposition of Marathi language as a compulsory study in schools run by linguistic minorities is the main matter for judgment in this case.
2. The petitioner's case is that the imposition of compulsory Marathi is in violation of the fundamental right of the linguistic minority to establish an educational institution of “their choice” under Article 30(1) of the Constitution; that the “choice” is meant to achieve not only the purpose of conserving the minority's mother tongue, language, etc. but also giving their children a good general education; that the minority, in furtherance of their fundamental right under Article 29(1) read with Article 30(1) of the Constitution has a choice to teach the other subjects (Maths, Science, etc.) through such medium — mother tongue, Hindi or English — as commends to it and correspondingly a “negative choice” not to teach such subjects in any such medium that does not commend to its perception of good general education; that the imposition of regional language is violative of the minority right to conserve its own language, script and culture and it has no constitutional duty or obligation to learn or promote the regional language; that the minority has a right and “choice” to avoid the regional language if it feels that the same might conflict with their “conservation” of mother tongue and/or promotion or learning of Hindi and English by its students; that the only power of State vis-à-vis a minority educational institution is to make reasonable regulations to prevent its maladministration; that not even national or public interest or any State necessity can justify or legitimise any encroachment on the fundamental rights of a minority guaranteed under Article 30(1); that in the matter of syllabi meant for an educational institution belonging to a linguistic minority, the State may have a power to make regulations for determining the standards of education insofar as both the languages and the other general subjects are concerned, but the State does not have the power to interfere with the language or languages that a linguistic minority has chosen to conserve, learn, teach and promote either as languages themselves or as the medium for other general subjects; that under the impugned syllabus circulated by the Board, the pattern of language studies is radically altered so as to impose Marathi as a compulsory subject upon non-Marathi-speaking students studying in English-medium schools and in the process, the study and imparting education in the mother tongue is effectively sacrificed; that the students studying in recognised English-medium schools shall not be deprived of their right to take a paper of 100 marks in their mother tongue and of studying the national language (Hindi); that the imposition of Marathi as a compulsory language is also violative of Article 19(1)(a) as well as of Articles 19(1)(e), (g) and 21 of the Constitution and is also contrary to the constitutional scheme and rights envisaged in the various provisions of Part XVII and Articles 120 and 210 of the Constitution; that the impugned educational policy also prevents them from performing the fundamental duties under Article 51-A of the Constitution in general and clauses (c), (e), (f), (h) and (j) thereof, in particular; that the impugned policy fails to take into account the linguistic structure and cosmopolitan character of Bombay region of Maharashtra State, which for historical reasons stands on a different footing; that the impugned education policy of the State of Maharashtra discriminates against the students belonging to linguistic minority and is arbitrary and discriminatory; that, therefore, it is prayed before us to strike down the impugned decision.
3. The State of Maharashtra maintained the stand that the imposition of Marathi language or asking the schools to follow particular syllabi is a matter of State policy; that this position is settled by this Court in English Medium Students Parents Assn. v. State of Karnataka (1994) 1 SCC 550 that the considered policy decision of the State is based on the recommendations of the Education Commission, the National Education Policy, the expert opinion of several educationalists and the need to spread its regional language; that the writ petitioners had not considered the necessity of teaching Marathi language from the perspective of the need of the whole State of Maharashtra; that the imposition of Marathi language is not against the fundamental rights of the citizens, on the contrary, the larger welfare of the student community has been kept as the paramount consideration; that there is no bar to establish a non-Marathi-regional-language-medium school in Maharashtra but Marathi language has also to be taught in such schools; that all the States have switched over to making their regional language as the compulsory language of study since 1968; that the education policies of 1968 and 1986 have been instrumental in the process of national integration and the students belonging to different linguistic minority groups will be better equipped to get themselves assimilated in the culture and life of the people of Maharashtra; that the mother tongue of more than 80% students, whose mother tongue is not English and are studying in English-medium schools is Marathi; that the State has a right to determine the policies which help in the development of regional language; that the students whose mother tongue is not Marathi in English-medium schools have the facility of studying their mother tongue as a composite subject of 50 marks; that as per the revised pattern of study of languages in English-medium schools the students are required to study three languages — English and Marathi, and the third language either as full paper or in composite papers (Hindi 100 marks, or Hindi + one of the modern Indian languages taught in the State, or Hindi + one classical language taught in the State); that, therefore, they submitted that the policy decision taken by the State to make Marathi language a compulsory subject is not violative of Article 29 or 30 or any other provisions of the Constitution and prayed to dismiss the petition.
4. The deliberation in this case centres on the extent of protection of linguistic minority's educational rights guaranteed under Articles 29 and 30, and the permissible limit of State interference therein. Before going into the larger question, it has to be noted that the State of Maharashtra has not prevented the Gujarati linguistic minority from teaching Gujarati language in their schools. On the other hand, it took a policy decision to make Marathi language a compulsory module on school syllabi. Thus, the question for decision is — can a State impose the teaching of its regional language upon the linguistic minorities as a matter of policy?
5. This Court in several cases elaborately considered the limit of minority rights under Article 30. Though Article 30 is couched in unrestricted terms, this Court pointed out the limits of reasonable regulations that could be imposed by the State. In Rev. Sidhajbhai Sabhai v. State of Bombay AIR 1963 SC 540, (1963) 3 SCR 837 while interpreting Article 30, it was observed that: (AIR p. 545, para 10)
“Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed:”
6. Pertaining to the regulations that could be imposed under Article 30, it was further observed therein: (AIR p. 547, para 15)
“Such regulation must satisfy a dual test — the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.”
7. In St. Stephen's College v. University of Delhi (1992) 1 SCC 558 it was held that:
“So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1).”
8. Quoting Rev. Sidhajbhai Sabhai AIR 1963 SC 540, (1963) 3 SCR 837 with approval, this Court later in T.M.A Pai Foundation v. State of Karnataka (2002) 8 SCC 481 held:( & 570, paras 107 & 122)
“[T]he right under Article 30(1) is not so absolute as to prevent the Government from making any regulation whatsoever. As already noted hereinabove, in Sidhajbhai Sabhai case AIR 1963 SC 540, (1963) 3 SCR 837 it was laid down that regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality and public order could be imposed. If this is so, it is difficult to appreciate how the Government can be prevented from framing regulations that are in the national interest, as it seems to be indicated in the passage quoted hereinabove. 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 the right to establish and administer a mere illusion; but the right under Article 30 is not so absolute as to be above the law. …
… regulations made by the authority should not impinge upon the minority character of the institution. Therefore, a balance has to be kept between the two objectives — that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. This, in our view, is the correct approach to the problem.”
9. In T.M.A Pai (2002) 8 SCC 481 this Court concluded the position regarding the minority rights under Article 30 as under:( & 579, paras 137 & 138)
“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).
… In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.”
10. In the light of the above-discussed cases, it is clear that the State can impose reasonable regulations on the institutions covering (sic) Article 30 for protecting the larger interest of the State and the nation. The “choice” that could be exercised by the minority community or group is subject to such reasonable regulations imposed by the State. While imposing regulations, the State shall be cautious not to destroy the minority character of institutions. It is not the case of the petitioners herein that the respondents prevented them from teaching Gujarati language. On the other hand, they are only challenging the compulsory imposition of Marathi language for students and asking for a right “not to learn” Marathi language while living in the State of Maharashtra. The regulation in this case imposed by the State of Maharashtra upon the linguistic minority right is to make Marathi language a compulsory course in school syllabi. The issue for resolution here is to find whether this action is reasonable or not. The impugned policy decision was taken by keeping in view the larger interest of the State, because the official and common business are carried on in that State in Marathi language. A proper understanding of Marathi language is necessary for easily carrying out the day-to-day affairs of the people living in the State of Maharashtra and also for proper carrying out of daily administration. Hence the regulation imposed by the State of Maharashtra upon the linguistic minorities to teach its regional language is only a reasonable one. 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 (1971) 2 SCC 261 and D.A.V College v. State of Punjab (1971) 2 SCC 269.) 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 Assn. case (1994) 1 SCC 550.) In our opinion, the impugned decision taken by the Government of Maharashtra is within the regulatory ambit of Article 30. It is a reasonable one, which is conducive to the needs and larger interest of the State.
11. It is difficult to accept the proposition advanced by the petitioners that minority character would only be protected by learning Gujarati as a first or second language. There is enough opportunity, in the impugned school syllabi, for students in English-medium schools run by Gujarati minority group to offer Gujarati language as a composite subject. Students who want to learn Gujarati language can certainly learn it even according to the present scheme in English-medium schools. It is also open to the Gujarati minority community to run exclusive Gujarati-medium schools subject to the regulation of teaching Marathi language. But it won't be in the fitness of things to establish English-medium schools and asking for not teaching the regional Marathi 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 learn 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 country. Therefore, we cannot rule that the impugned policy will result in destroying the minority character of the Gujarati community in Maharashtra.
12. We may also notice one other aspect of the matter. In State of Bombay v. Bombay Education Society AIR 1954 SC 561, (1955) 1 SCR 568 the position was settled that the language of Article 29(2) is wide and unqualified so as to cover both majority and minority groups within its ambit. In Bombay Education Society AIR 1954 SC 561, (1955) 1 SCR 568 the impugned order denied admission to all pupils whose mother tongue was not English in English-medium schools. Because the right to admission into an educational institution is a right that an individual citizen has, as a citizen and not as a member of any community or class of citizens. The right of a minority to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture. But this right is subject to Article 29(2). So if we allow the petitioners to exclude the teaching of Marathi in their schools, then the student whose mother tongue is Marathi will be denied opportunity to learn his mother tongue and regional language as well as right to admission to a chosen school in the State of his origin for his non-proximity to Gujarati language.
13. The impugned circular wherein the compulsory imposition of Marathi language was made on all non-Marathi-medium schools directed the authorities to start teaching Marathi language from Class V onwards. Hence the children at the tender age are not burdened to learn an additional language. They could very well learn in their mother tongue. According to the accepted “three-language formula” the new language could only be taught from Class V. On this count also the impugned policy cannot be found fault with. Bombay city/region is now within the territorial limits of the State of Maharashtra, therefore, it is not necessary to look into this matter from the perspective of original State of Bombay when the State and city of Bombay was treated as a bilingual nor advert to reorganisation details or number of Gujarati-speaking population in that region.
14. For the foregoing reasons we hold that the impugned policy decision is not violative of the linguistic minority rights guaranteed under Articles 29 and 30 or any other provisions of the Constitution. Hence, this petition stands dismissed.
CA No. 1695 of 1997 and CA No. 8214 of 1995
15. In the light of the decision we have reached in WP No. 132 of 1995 and for the reasons set forth therein, CA No. 1695 of 1997 and CA No. 8214 of 1995 shall stand dismissed.