EDUCATIONAL RIGHTS OF MINORITY AND MEDIUM OF INSTRUCTION: AN ANATHEMA TO NATIONAL INTEGRITY BY M. AFZAL WANI AND DR. RAKESH KUMAR

 

Educational Rights of Minority and Medium of Instruction: An Anathema to National Integrity

 

M. Afzal Wani*

Dr. Rakesh Kumar*

 

1.       Introduction

Swami Vivekananda said: Education is not the amount of information that is put in your brain and run riot there, undigested, all your life. We must have life building, man making, and character making assimilation of ideas.[1]The statement clearly reflects that Education is a process of man making.  It has to be directed to development of child’s personality talent and ability.  Basic literacy and numeracy are the basic skill that is needed for learning at all stages and ages.[2] The National Policy on Education 1986 also laid emphasis on equity and social justice in education to promote the country’s unique socio-cultural identity and to contribute the national cohesion, promoting tolerance, scientific temper and concerns enshrined in the Constitution.[3] Education should aim at multifaceted development of a human being, his intellectual, physical and cultural development.[4]

For multifaceted development of human personality, diversified education, educational institution and medium of instruction is most significant tool. All educational experts have expressed their opinion that pupils should begin their schooling through the medium of their mother tongue. The reason being that if the tender minds, of the children are subjected to an alien medium, the learning process becomes unnatural. It inflicts a cruel strain on the children which makes the entire transaction mechanical. Beside it, the educational process becomes artificial and torturous.  The introduction of a foreign language tends to threaten and atrophy the development of mother tongue.[5]

In spite of these observations by educationist and noble advice by judiciary, a number of conflicts have arisen between rights of minority to impart education to their children in language of their choice and the claim of the State to impose its wisdom on minority educational institutions. The issue has arisen as to whether the State has power to prescribe compulsory or exclusive medium of instruction on minority educational institutions? Whether the State has power to impose restriction on the choice of medium of instruction in the name of national integration or equality of opportunity and if yes then what are the limitation on these power? What is the meaning of the term “mother tongue”? Whether a student or parent has right to choose the medium of instruction? Whether the imposition of mother tongue in any way affects the fundamental rights under Articles 19, 29 and 30 of the Constitution?

Article 29(1) of the Constitution provides that, “Any section of the citizen residing in the territory of India or any part thereof having a distinct language script or culture of its own shall have the right to conserve the same” and Article 30(1) provides that “all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice.

2.      Right of Minority to Determine the Medium of Instruction

The right of a minority to establish and administer educational institution of its choice also carries with it the right to impart instruction in their institutions to their children in their own language. Article 29(1) allows minority to conserve their distinct language or script, though it does not specify the means of such conservation. It cannot be disputed that establishment of educational institution is one of the most effective means of the conservation of language and script. The Court have thus read in the language of Article 29(1) an implied right to establish educational institution.[6]  Logically then the right to adopt the minority language as the medium of instruction is implicit in Article 29(1).Article 30(1) which in term allows minority to establish and administer educational institution leaves it to ‘their choice’ to determine the kind and character of educational institution. Their choice therefore necessarily includes a choice to determine the language of such instruction in such institutions.

In State of Bombay v. Bombay Education Society,[7]a circular of the Government of Bombay sought to regulate the use of English as a medium of instruction by laying down that no school, where English is being used as a medium of instruction shall admit any student whose mother tongue is not English, whereas, Article 337 required that at least 40% seats in Anglo-Indian Educational Institution must be made available to students of other communities.

The State contended that the impugned order does not deny admission to any citizen on the ground only of religion, race, caste, language or any of them and these measures are being taken to promote Hindi, which is ultimately our national language.[8]On the other hand, it was contended on behalf of the respondent that “the main, if not the sole, object of the impugned order is to discriminate against   and if possible to stifle the language of the Anglo-Indian Community in utter disregard of the constitutional inhibition.[9]

It was further contended that, the opening of parallel classes in the same school with an Indian language as the medium of instruction while the pupils in the other classes are taught in English will certainly not be conducive to or promote the conservation of the distinct language, script or culture, which is guaranteed by Article 29(1) to the Anglo-Indian community as a section of the citizens.[10]

The Supreme Court held the order bad in law. The Court which giving liberal meaning of Articles 29(1) and 30(1) held that, the language of Articles 29 and 30 was broad enough to include within its ambit a right of minority to determine a medium of instruction for its own institution.

S.R. Das C.J. delivering the unanimous judgement of the Court observed as follows:

A minority like the Anglo-Indian Community has the fundamental right to conserve its language, script or culture under Article 29(1) and has right to establish and administer educational institution of their choice under Article 30(1), surely then there must be implicit in such fundamental right, the right to impart instruction in their own institution to their children of their own community in their own language.To hold otherwise will be to deprive Article 29(1) and Article 30(1) of the greater part of their content[11].”

While discussing the scope of regulatory powers of the State over minority right to decide the medium of instruction, Chief Justice Das, remarked, the power of the state to regulate is not superior to the right enjoyed by the minorities under Articles 29(1) and 30(1)[12] and that “The police power of the state to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it.”[13]

3.   No Power to Impose an Exclusive and Compulsory Medium of Instruction

In Shri Krishna Ranganath Mudholksar v. Gujarat University, [14] the Gujarat High Court was asked to interpret certain provisions of the Gujarat University Act, 1949, by which Gujarati or Hindi or both were prescribed as sole medium of instruction.

In this case, the medium of instruction of the petitioner in the first year Arts class in St. Xavier College affiliated and aided by the Gujarat University and State of Gujarat respectively, was English. He took the instruction and examination in English language.  When he sought admission in the Intermediate Arts Course, to study for the examination through English he was refused admission in view of the Section 4(27) [15] and Section 38 of the Gujarat University Act, 1949 and Statutes 207, 208 and 209 [16] made by the Senate of Gujarat University in 1954 and amended by the Senate in its meeting held on 9th, 10th, 30th and 31st March, 1961. Prior to 1961 Amendment, proviso to Section 4(27),[17]permitted that English may continue to be the medium of instruction and examination for a period not exceeding ten years. By the Gujarat University (Amendment) Act 1961, a new proviso[18] to Section 4(27) was incorporated.  The Statute was also amended[19] by the Senate in 1961.

The Registrar of the Gujarat University by a letter dated 5th June 1961 directed to the Principals of the affiliated colleges that the Statute, Ordinances and Regulations made under the 1961 Act, relating to medium of instruction must be complied forthwith; otherwise, the penalty of automatic disqualification under Section 38A[20] would be incurred by such affiliated college.

The Registrar of the University vide its circular dated June 22, 1961, informed to the Principal of the affiliated colleges, that, the Vice-Chancellor in exercise of  power vested in him under Section 11(4)(a) of the Act was pleased to direct that:

“(1) Only those students who have done their secondary education through the medium of English and who have further continued their studies in the first year Arts class in the year 1960 -61 through English, shall be permitted to continue to use English as the medium of their examination in the Intermediate Arts class for one year i.e. 1961-62; and

(2)     The College be permitted to make arrangement for giving instruction to students mentioned in Clause (1) above through the medium of English for only one year i.e. 1961-62; and

(3)     The Principal shall satisfy themselves that only such students as mentioned in (1) above are permitted to avail themselves of the concession mentioned therein.”[21]

The Full Bench of the Gujarat High Court, speaking through J.M. Shelat, J. issued writs directing Gujarat University not to enforce the provisions of Section 4(27) of the Gujarat University Act, 1949 as amended in 1961 and the Statutes. The Court further laid down the following proposition:

(i)      “Statute 207 and 209 seeks to impose Gujarat and / or Hindi in Devnagari script as media of instruction and examination in institution other than University maintained institution are null and void and university is not having power to lay down Gujarati or Hindi as a medium of instruction and examination or to forbid the use of English as a medium of instruction and examination:

(ii)     The University has the power to lay down Gujarati or Hindi as one of the media of instruction and examination and not as the only medium of instruction and examination to the exclusion of other languages;

(iii)    The proviso to Section 4(27) of the Gujarat University Act as amended by Act 4 of 1961 amounts to encroachment on Entry- 66 of List I of the Seventh Schedule and beyond the legislative competence of the Legislature;

(iv)    Thus, the University is authorized to prescribe a particular language or languages as medium of instruction and examination for affiliated colleges and to prohibit the use of English as medium of instruction and examination but the provisions authorising the imposition of exclusive media are void and infringe Articles 29(1) and 30(1) of the Constitution.”[22]

The decision of the High Court was challenged before the Supreme Court.  The issue before the Supreme Court was as follows:

(1)         Whether under the Gujarat University Act, 1949, it is open to the University to prescribe Gujarati or Hindi or both as an exclusive medium or media of instruction and examination in the affiliated college?

(2)         Whether such authorisation would infringe Entry-66 of List-I, of the Seventh Schedule to the Constitution”.

It was held by the Lordship of the Supreme Court that ‘Neither under the Gujarat University Act, 1949 as originally enacted nor as amended in 1961, the University is empowered to impose Gujarati or Hindi as the exclusive medium of instruction’.[23]“The use of indefinite Article, “a” before the expression “medium of instruction”, while in proviso, the use of definite article, “The” in relation to “English as medium of instruction” clearly suggest that the power to impose Gujarati or Hindi as the medium of instruction and examination to the exclusion of other media was not entrusted to the University.”[24]“The power of legislate in respect of the primary or secondary education is exclusively vested in State legislature under Entry-11 of List-II while power to legislate in respect of medium of instruction, is not a distinct legislative head, but must be deemed to vest in the Union, the reason being that it has a direct bearing and impact upon the legislative head of coordination and determination of standard in institutions of higher education or research and Scientific and Technical institutions. Hence, it must be deemed to vest in the Union under Entry-66 of List-I of the Seventh Schedule of the Constitution.”[25]

Justice Subbha Rao, in his dissenting opinion, however, expressed the view that if it can fix two media, it can equally prescribe a sole medium, if it thinks that for the proper instruction a particular language is the most suitable medium.”[26]

Thus, it is clear that the University may prescribe a particular language as medium of instruction and examination but certainly it cannot prescribe a particular language as an exclusive medium of instruction and examination. Coordination and determination of standards in instructions of Higher Education vest with the Union Government under Entry-66 of List-I of the Seventh Schedule of the Constitution.

In D.A.V. College, Bathinda v. The State of Punjab[27], the petitioner challenged the Constitutional validity of Section 4(2) and Section 5 of the Punjab University Act, 1961 and circular and notification issued there under as unconstitutional and void.

The University by the impugned circular, dated June 15, 1970 issued to all Principals and College admitted to the privileges of the University, declared that, “Punjabi will be the sole medium of instruction and examination for the pre-University even for science group with effect from the Academic Session 1970-71.” Later, the Sub-Committee of the Senate took a decision on July 1, 1970, relaxing the earlier Order allowing the students who had passed their matriculation examination with English as their medium of examination to be taught and to answer examination paper in the English medium at pre-University level, only so long as the other universities and school bodies of Punjab did not adopt Punjabi as their medium of instruction.

On October 7, 1970 was issued another circular prescribing that English be allowed as an alternative medium of examination for all students for the course for which the University had adopted the regional language as the medium”. It was however, understood that qualifying in the elementary Punjabi paper would be obligatory in the case of such students offering English medium, as had not studied Punjabi as an exclusive or optional subject even up to the middle standard.”

It was further decided that “students availing themselves of the facilities given there under will have to pass a compulsory course in Punjabi of 50 marks of which a minimum of 25 marks will be required to pass that course.”

The Petitioner challenged the University circular on the following grounds:

(1)         The circular issued by the University will have effect of lowering the educational standards as well as affect the students who have passed matriculation examination in Hindi and will be at disadvantage in seeking admission in professional colleges.

(2)         Section 4(2) of the Act, did not empower the University to make Punjabi the sole medium of instruction and that it was not within the legislative power of the State under Entry-11 of List – II to prescribe Punjabi language the sole medium of instruction.

(3)         The power to prescribe medium of instruction vested in the Union Parliament under Entry 66 of List I of the Seventh Schedule of the Constitution.

(4)         Further, the medium of Instruction in Punjabi with Gurmukhi as the script is sought to be imposed on the educational institution established by the Arya Samajis, a religious denomination, infringe their rights under Articles 26(1), 29(1) and 30(1) of the Constitution”.[28]

The State seeks to justify the notification on the ground that it is the national policy of the Government of India, that the energetic development of Indian languages and literature is a sine qua non for educational and cultural development.[29]

It was held by the Lordship of the Supreme Court that

(1)         The circular intended to make Punjabi language as an exclusive medium of instruction as well as for examination.  The use of the word, ‘sole’ in the circular would mean and imply that it is ‘exclusive’.  In relation to the examination the medium being Punjabi would mean that the script to be used is exclusively Gurmukhi.

(2)         The directive for the exclusive use of the language and script as medium of instruction and examination affects the petitioner college as religious minority institution and directly infringe their right to conserve their script and administer the institution.

(3)         The relaxation made subsequently in the earlier directives of the University made little difference because in order to be allowed to take English as an alternative medium of examination, it was obligatory for a student to pass the matriculation examination with English as the medium of instruction and that unless he studied Punjabi language as an elective or optional subject even up to the middle standard he was required to qualify in the elementary Punjabi language paper. This concession, however, did not benefit students with Devanagari as their script because for them Punjabi medium was obligatory in their pre-University courses.

(4)         If as is contended that, teaching in the regional language, which means in the mother tongue, accelerates the pace of educational and cultural development and makes for improvement and excellence of educational standard this criterion is equally applicable to the religious or linguistic minorities or any other section of the citizen who have a distinct language, script and culture and whose right to conserve them and to administer their institution are guaranteed under Articles 29(1) and 30(1) of the Constitution.

(5)         “Further, no State has the legislative competence to prescribe any particular medium of instruction in respect of higher education or research and scientific or technical instructions, if it interferes with the power of the Parliament under Entry 66 of List I to coordinate and determine the standard in such institutions.[30]

Jaganmohan Reddy, J. speaking on (behalf of himself and Sikri, C.J., Mitter, Hedge, Grover, J.J.) observed as follows: 

The right of the minorities to establish and administer educational institutions of their choice would include the right to have a choice of the medium of instruction also which would be the result of reading Article 30(1) with Article 29(1).  But if the University compulsorily affiliates such colleges and prescribes the medium of instruction and examination to be in a language which is not their mother tongue or requires examination to be taken in a script which is not their own, then it interfere with their Fundamental Rights.  It is true that no linguistic minority can claim that the University shall conduct its examination in the language or script – which the minority institutions may adopt but not to compulsorily affiliate them and impose on them a medium of instruction and script not their own.[31]

Thus, State must therefore harmonize its power to prescribe the medium of instruction with the rights of the religious or linguistic minority or any section of the citizen to have the medium of instruction and script of their own choice, by either providing also for instruction in the media of these minorities or if there are other Universities which allow such colleges to be affiliated where the medium is that which is adopted by the minorities institutions, to allow them the choice to be affiliated to them.”[32]

The State claim to provide medium of instruction was again considered by the Supreme Court in D.A.V. College, Jallandhar v. State of Punjab[33].In this case the petitioner challenged the constitutional validity of sub-section (2) and (3) of section 4 of the Guru Nanak University, Amritsar Act, 1969, which provides for the study and research on the life and teaching of Guru Nanak and their cultural and religious impact in the context of India and the World Civilization.”

The Petitioner’s contention was that the main purpose and object of the University is to propagate Sikh Religion and promote Punjabi language in Gurmukhi Scripts, and their compulsory affiliation, violates the rights of Arya Samaj Sect and their denomination under Articles 29(1) and 30(1) of the Constitution.[34]

It was held by the Lordship of the Supreme Court that:

(1)         Clause (2) and (3) of Section 4 which provide for the study and research of life and teachings of Guru Nanak and Punjabi Language and literature do not offend the rights of minorities under Articles 29(1) and 30(1) of the Constitution.Nowhere,there mandate for compelling colleges, affiliated to it either to study the religious teachings of Guru Nanak or to adopt the culture of Sikh.”[35]

(2)         “To provide for academic study of life and teachings or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and World Civilization cannot be considered as making provisions for religious instructions.”[36]

(3)         “State of Punjab is created as a unilingual state with Punjabi as its language and if provision is made for the study of Punjabi language that does not furnish a ground for discrimination, nor can the provision for the study of life and teachings of Guru Nanak be said to offer any cause for complaint on the grounds of violation of Article 14 of the Constitution.[37]

In General Secretary Linguistic Minorities Protection Committee v. State of Karnataka[38], an order issued by the Government of Karnataka making the study of Kannada language as compulsory subject for children belonging to linguistic minority group in the State from the 1st year of primary school was challenged. The Government Order compelled the primary school established by linguistic minority to introduce Kannada as a compulsory subject from the first year of the primary school. The order also compelled the students giving high school to take Kannada as the sole first language and also compelled the high school established by the linguistic minority to introduce Kannada as the sole language in the secondary school.

It was held by the full bench of the Karnataka High Court that,“The Government order making of study of Kannada as compulsory subject for children belonging to linguistic minority groups from the first year of the primary school and compelling the primary school established by linguistic minorities to introduce it as compulsory subject from the first year of the primary school and also in so far as it compels the students joining High School to take Kannada as the sole first language and compelling the High School established by linguistic minorities to introduce Kannada as the sole first language in the secondary school is violative of pledge of equality guaranteed by Articles 14, 29(1) and  30(1) of the Constitution.”[39]

 4. Parents Right to choose Mother Tongue

One of the issues which have constantly agitated the minds of the Court as to whether, the State can impose on the mother tongue of linguistic minority as compulsory medium of instruction? What is the meaning of the term ‘mother tongue’? Who will have the right to decide about mother tongue of the children?

In English Medium Parents Association v. State of Karnataka [40] in this case, the Government of Karnataka on the basis of the recommendation of the expert committee took a policy decision and issued order prescribing as follows:

From 1st standard to IV standard, where it is expected that normally mother tongue will be the medium of instruction, only one language from Appendix I [41]will be compulsory subject of study.”

 

The Division Bench of the Karnataka High Court held that from a reading of the Government order it is clear that elements of compulsion at the primary stage is no longer there because the Government Order is unequivocal when it says from 1st to 4th standard mother tongue will be medium of instruction, only one language from Appendix I will be compulsory subject of study. From 3rd standard onwards Kannada will be optional subject for non-Kannada speaking students. It is to be taught on a voluntary basis there being no examination at the end of the year in Kannada language.”[42]

 

Thus, the Court upheld “the Government Order on the premises that there was no element of compulsion at the primary stage any longer as the medium of instruction from 1st to 4th standard would be in mother tongue. From this decision, it cannot be inferred that prescription of mother tongue in class 1st to 4th in the primary school can be compelled by the state as a regulatory measure for maintaining the standard of education.”[43]

In Associated Management of Primary and Secondary School in Karnataka v. State of Karnataka.[44] The Constitutional bench of the Karnataka High Court considered the constitutional validity of language policy of the Government of Karnataka for primary and High Schools with effect from 1994–1995.The Order provided that the medium of instruction should be mother tongue or Kannada with effect from academic year 1994–1995 in all government recognized schools in class 1st to 4th  and the students can be permitted to change over to English or any other language as a medium of their choice from class 5th .

The order dated April, 29,th 1994, however, clarified that permission can be granted to only those students whose mother tongue is English, to study English medium in classes II to IV in the existing recognized English medium school.[45]

A Full Bench of the Karnataka High Court allowed writ petition which challenged the order and quashed some of the clauses of the order in their application to schools other than schools run or aided by the government but upheld the rest of the order.

The Court laid down the following proposition of wider Constitutional significance:

“(1)   Right to Education is a fundamental right being a species of right to life, flowing from Article 21 of the Constitution. By virtue of Article 21A the right to free and compulsory primary education is a fundamental right guaranteed to all children of the age of six to fourteen years. The rights to choose the medium of instruction are 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.

(2)     Right to freedom of speech and expression includes the right to choose a medium of instruction.

(3)     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 an educational institution of one’s choice. “One’s Choice” includes the choice of medium of instruction.

(4)     Under Article 26 of the Constitution of India every religious denomination has a right to establish and maintain an institution for charitable purpose which includes an educational institution. This right is available to majority and minority religious denominations.

(5)     Every section of the society which has a distinct language, script or culture of its own has the fundamental right to conserve the same. This is the right which is conferred on both majority and minority, under Article 29(1) of the Constitution.

(6)     All minorities, religious or linguistic have a right to establish and administer educational institutions of their choice under Article 30(1) of the Constitution.

(7)     Thus, every citizen, every religious denomination, and every linguistic and religious minority, has a right to establish, administer and maintain an educational institution of his / its choice under Articles 19(1) (g), 26 and 30(1) of the Constitution of India which includes the right to choose the medium of instruction.

(8)     No citizen shall be denied admission to an educational institution only on the ground of language as stated in Article 29(2) of the Constitution.

(9)     The Government Policy in introducing Kannada as the first languages 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 of the subject is 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 case of schools run or aided by the state.

(10)   But, the government policy compelling children studying in other government recognized schools to have primary education only in the mother tongue or regional language is violative of Articles 19(1) (g), 26 and 30(1) of the Constitution of India.”

Aggrieved by the decision of the Full Bench of the Karnataka High Court, when the Court have quashed clause (2), (3), (6) and (8) of the Government Order dated 29.04.1994 in their application to schools other than run or aided by the Government but upheld the rest of the order, the state filed an appeal before the Supreme Court.  The matter was heard by the division bench and considering the question of wider ramifications referred the matter to be heard by the Constitution Bench.

In State of Karnataka v. Associated Management of English Medium Privacy and Secondary Schools and others [46]

The issue before the Supreme Court were as follows:

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

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

(3)     Does the imposition of mother tongue in any way affect the Fundamental Rights under Articles 14, 19, 29 and 30 of the Constitution?

(4)     Whether government recognized school are inclusive of both government aided schools and private unaided schools?

(5)     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?”[47]

The matter was considered by the Constitution Bench of the Supreme Court comprising of K.M. Lodha, C.J. and A.K. Patnaik, Sudhansu Jyoti Mukhopadhya, Dipak Mishra and F.M. Ibrahim Kalifulla, JJ.

A.K. Patnaik, J. speaking on behalf of the Court laid down the following proposition:

(1)     In response to the first question, it was held thatMother tongue in the context of the Constitution would, therefore, 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.

(2)     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 we 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.[48]

(3)     While deciding this issue the Court relied upon the resolution adopted at the Provincial Education Ministers Conference held in August, 1949 and recommendation of the State Reorganization Commission, 1955, where it was provided that the “Children of the Linguistic Minority which had language different from the language of the State were to be imparted education at the primary stage in their mother tongue” and “mother tongue will be the language declared by the parent or the guardian to be mother tongue.”[49]

(4)     In response to the second question, the Court held that, ‘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’.[50]

(5)     The reason being that Article 21A of the Constitution provides that the State shall provide free and compulsory education to all children from the age of six to fourteen year in such manner as the state may, by law, determine. The language of Article 21A clearly stipulate 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, by the State.[51]

(6)     Hence, the High Court 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 Article 21 and 21A of the Constitution.[52]

(7)     The Court further observed that:Once we come to conclusion that 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 Article 19 (2) of the Constitution and we cannot 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 restriction on this right of the child for purposes other than those mentioned in Article 19(2) of the Constitution.[53]

(8)    In response to the third question, “Does the imposition of mother tongue in anyway affect the Fundamental Right under Articles 14, 19, 29 and 30 of the Constitution,  the Court relied on the finding of the Supreme Court in D.A.V. College, Bathinda v. State of Punjab [54], wherein it was already held by the Supreme Court that minorities have a right to establish and administer educational institutions of ‘their choice’ and therefore they have the choice of the medium of instruction in which education will be imparted in the institutions established and administered by them, held that imposition of mother tongue affects the fundamental rights under Articles 19, 29 and 30 of the Constitution.[55]

(9)     The Court also negated the arguments of the State, to the effect that “if the States prescribe the medium of instruction to be other than the mother tongue of the child, which is the language of the minority community, there is no violation of the right of the linguistic minority under Article 30(1) of the Constitution by saying that the ‘choice’ of the minority community under Article 30(1) need to be limited to imparting education in the language of the minority community.”[56]

The Court also held that the finding of Division Bench in English Medium Parents Association v. State of Karnataka [57] is not an authority for the proposition that prescription of mother tongue in class I to IV in the primary school can be compelled by the State as a regulatory measure for maintaining the standard of education.

A.K. Patnaik, speaking on behalf of the Court further observed that:

Though the experts may be of a uniform in  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 conditions 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 (Sic) would violate the aforesaid Fundamental Rights.[58]

 

(10) In response to the fourth question, the Court said 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.

 

(11) In response to the fifth question as to whether the State can by virtue of Article 350-A of the Constitution compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary school? The Court said, “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 350-A, therefore, cannot be interpreted to empower the state to compel a linguistic minority to choose its mother tongue only as medium of instruction in primary school established by it in violation of its Fundamental Right under Article 30(1).

 

Thus, the State has no power under Article 350-A of the Constitution to compel the linguistic minorities to choose their mother tongue only as a medium of instruction in primary schools.”[59]

5.   Imposition of Regional Language

In Usha Mehta and others v. State of Maharashtra[60], in this case, the Policy decision of the State of Maharashtra to study Marathi language as compulsory subject throughout the schools in the State was challenged by the English medium school run by the Gujarati linguistic minority on the ground that it is violative of their Fundamental Right guaranteed under Articles 29(1), 30(1), 19(1)(a), 19(1)(e) and 21 of the Constitution. They further contended that impugned educational policy also prevented them from performing their fundamental duties under Article 51-A of the Constitution in general and clauses (c), (e), (f), (h) and (j)[61] in particulars, it was also questioned by English medium school run by Gujarati linguistic minorities on the ground that they were compelled to teach four languages namely Hindi, English, Marathi and their mother tongue Gujarati.

S. Rajendra Babu, C.J. (speaking on behalf of himself and Dr. A.R. Lakshmanan and G.P. Mathur, JJ), while rejecting the petition held 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.

As to the requirement of State to compulsorily learn the regional language the Court laid down the following postulates:

“(1) The right of the minorities to establish and administer educational institution of “their choice” under Article 30(1) read with Article 29(1) would include the right to have choice of medium of instruction.

(2)     Articles 29 and 30 cannot be interpreted in such a fashion so as to contain the negative right to exclude the learning of regional language.

(3)     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.

(4)     While imposing regulations, the State shall be cautious not to destroy the minority character of the institutions.

(5)     In the instant case, the petitioner is not prevented from teaching Gujarati language but they are merely challenging the compulsory imposition of Marathi language for students and asking for right “not to learn” Marathi language for students and asking for right “not to learn” Marathi language, while living in state of Maharashtra. The impugned policy decision was taken by keeping in view the larger interest of the State because official and common businesses are carried on in that State in Marathi language. A proper understanding of Marathi language is necessary for easy carrying out of day-to-day affairs of the people living in Maharashtra.Hence, the regulation imposed by the State upon the linguistic minority to teach its regional language is only a reasonable one.[62]

The Court further remarked, “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 barrier and will positively contribute to the cultural integration of the country. The impugned policy decision is in the paramount interest of students and also in the larger interest of the country.[63]

In Ramaswamy, K.R. Traffic Ramaswamy v. State of Tamilnadu[64], the division bench of the Madras High Court upheld the policy decision of the State of Tamil Nadu to make Tamil as compulsory subject from standard I onwards, as reasonable regulation on the ground that proper understanding of Tamil language is absolutely required for smooth running of the day-to-day affairs of the people living in the State, when the official and common business in the State is carried in Tamil language only.

From the aforesaid discussion the following can be safely inferred:

(1)         The Minorities right to establish and administer educational institutions of “their choice” includes the minority rights to determine the medium of instruction.

(2)         The expression of their choice is of vital importance and it may be as wide as the choice of the minority may make it i.e. the minority establishing educational institution may have any language as medium of instruction as they think fit.

(3)         The minority right to determine medium of instruction is not an absolute right, but it is subject to reasonable restriction which may be imposed by the State. But the power of State to regulate is not superior to the right enjoyed by the minorities under Articles 29(1) and 30(1) of the Constitution. The Police Power of the State to determine the medium of instruction must yield to the Fundamental Right to the extent it is necessary to give effort to it.

(4)         As the State regulation pertaining to the compulsorily study in regional language, it is suggested that minority educational institutions should not be compelled to study the regional language, howsoever, desirable it may be for day-to-day affairs of the people. When the minority community cannot be compelled to study their own mother tongue compulsorily then how the minority institutions will be subject to study regional language compulsorily. These matters need to be left to concerned minority educational institution to decide about the language of instruction for their institutions.

(5)         It is further suggested that where the minority educational institution is established for imparting secular education in accordance with the syllabus prescribed by the State or University, then the medium of instruction loses importance because the object is not to conserve their language or culture. The universal medium of instruction is highly desirable especially for higher and technical education for uniformity and maintenance of standard as well as national integration.


*       Professor of Law, University School of Law and Legal Studies, GGSIP University, Dwarka, Delhi-110078

*       Assistant Professor, University School of Law and Legal Studies, GGSIP University, Dwarka, Delhi

[1]       Ramaswamy, K.R.  @ Traffic Ramaswamy v. State of Tamil Nadu  2007 (5) CTC 113 at 128.

[2]       Id. at 127.

[3]       Id. at 128.

[4]       S.B. Chavan Committee Report submitted in Parliament on February 1999 highlighting “Value Based Education”, Ramaswamy, K.R. @ Traffic Ramaswamy v. State of TamilNadu 2007 (5) CTC 113 at 128.

[5]       English Medium Students Parents  Association v. State of Karnataka and Others (1994)  1SCC 550 at 560.

[6]       In re-Kerala Education Bill 1957, AIR 1958 SC 956.

[7]       AIR 1954, SC 561.

[8]       Id.  at 566.

[9]       Id. at 567.

[10]     Ibid.

[11]     Id. at 569.

[12]     Id.

[13]     Id. at 569.

[14]     AIR 1962 Guj. 88 (FB).

[15]     Section 4(27) of the Gujarat University Act, 1949 read as: “To promote the development of the study of Gujarati and Hindi  in Devnagari script and the use of Gujarati or Hindi in Devnagari script or both as a medium of instruction and examination.”

[16]     Statue 207,208 and 209 as enacted by the Senate read as follows:Statue 207; “ (1) Gujarati shall be medium of instruction and examination;

        (2) Notwithstanding anything in Clause (1) English shall continue to be medium of instruction and examination for a period not exceeding ten years from the date on which Section 3 of the Act came into force, except as prescribed from time to time by the statutes;

        (3)Notwithstanding anything in Clause (1), non-Gujarati students and teachers will have option, the former for their examination and the latter for their teaching work, to use Hindi as a medium if they so desire; and

        (4) Notwithstanding anything in Clause (1), (2) and (3), the medium of examination and instruction for modern Indian language may be their respective languages.”

        Statute 208: “Provided that the medium of instruction and examination in all subjects from June 1955 in First Years Arts, First year science and First year commerce and in Inter-Arts,, Inter-Science, Inter-Commerce and First year Science shall cease to English and shall be as laid down in Statute 207(1).”

        Statute 209: Provided that “the medium of instruction and examination in all subjects in the examination enumerated therein shall cease to be English and shall be as laid down in statute 207(1) with effect from the years mentioned against the respective examinations.  It was, however, provided that a student for the purpose of examination and teacher for the purpose of instruction would be permitted to use English up to November 1960 i.e. up to the academic year ending June 1961 if he felt that he could not use Gujarati or Hindi as well.”

[17]     Proviso to Section 4(27) as it stood prior to Gujarat University (Amendment) Act, 1961: “Provided that English may continue to be medium of instruction and examination in such subjects and for such period not exceeding ten years from the date on which Section 3 comes into force as may from time to time be prescribed the statute.”

[18]     Proviso to Section 4(27) read as: “Provided that English may continue to be medium – (i) of instruction and examination for such period as may from time to time be prescribed by statutes until the end of May 1966 in respect of such subjects and courses of study as may be prescribed.”

[19]     Statute 207 as amended by the Senate in 1961:

        “(1) Gujarati shall be medium of instruction and examination, but Hindi will be permitted as an alternative medium of instruction and examination in the faculties of medicine, technology including engineering and law and in all faculties for post graduate course.”

        (2) Notwithstanding anything contained in Clause (1), English be continued to be the medium of instruction and examination for such period and in respect of such subjects and course of study as may from time to time be prescribed by the Statute under Section 4(27) for time being force.

        (3) Notwithstanding anything contained in Clause (1) students and teachers whose mother tongue is not Gujarati will have the option, the former for the examination and latter for their instruction to use Hindi as the medium, if they so desire.

        (4) notwithstanding anything contained in Clause (1) and (3), affiliated college, recognized institutions and University Departments as the case may be, will have the option to use for one or subjects Hindi as a medium of instruction and examination for students whose mother tongue is not Gujarati.”

[20]     Section 38A of Gujarat University Act, 1949:

        “(1) Every affiliated college and recognized institution, shall in respect of the medium of instruction, teaching, training and examination, therein, comply with the provisions made in that behalf by this Act, and the Statutes, Ordinances and Regulations made under it.

        (2) If any affiliated college or recognized institution contravenes the provisions of sub-section (1), then, notwithstanding anything contained in the other provisions of this Act –

        (a) The right conferred on such college or institution by the affiliation or recognition shall stand withdrawn from the date of such contravention and

        (b) Such college or institution shall cease to be an affiliated college or recognized institution for the purpose of the act.

[21]     AIR 1963 SC 703 at  707.

[22]     Id. at 704.

[23]     Id.  at 711.

[24]     Id.  at 709.

[25]     Id. at 713.

[26]     Id. at 725.

[27]     1971 (2) SCC 261.

[28]     Id. at 263.

[29]     Id. at 265.

[30]     Id.  at  265 – 266.

[31]     1971 (2) SCC 261 at 265 – 266.

[32]     Id. at  266.

[33]     (1971) 2 SCC 269 at   273.

[34]     Ibid.

[35]     Id. at 278.

[36]     Id. at 279.

[37]     Id. at 280.

[38]     AIR 1989 Kant. 226.

[39]     (1994) 1SCC 550 at  555.

[40]     (1994) 1 SCC 550.

[41]     Appendix I included subject such as : 1. Kannada, 2. Tamil, 3. Telgu, 4. Malayalam, 5. Marathi, 6. Hindi, 7. Urdu, 8. English.

[42]     (2014) 9 SCC 485 at 513 – 14.

[43]     Ibid.

[44]     ILR. 2008 Kar. 2895

[45]     The relevant clause of the order read:

1.        “The medium of instruction should be mother tongue Kannada, with effect from academic year 1994 – 95 in all government recognized schools in class I to IV.

2.        The student admitted in 1st standard with effect from the academic year 1994 – 95, should be taught in mother tongue or Kannada medium.

3.        However, permission can be granted to the school to continue to teach in the pre-existing medium to students of standard II to IV during the academic year 1994 – 1995.

4.        The students are permitted to change over to English or any other language as medium at their choice from 5TH standard.

5.        Permission can be granted to only students whose mother tongue is English, to study in English medium in classes I to IV in the existing recognized English medium school.

6.        The Govt. will consider regularisation of the existing unrecognized schools as per policy indicated in Para 1 to 6 mentioned above.  Request of schools who have complied with the provisions of the code of education and present policy of the Government will be considered on the basis of the report of the Zila Panchayat routed through Commissioner for public instructions.

7.        It is directed that all unauthorized schools which do not comply with the above conditions will be closed down.”

[46]     (2014) 9 SCC 485.

[47]     Id.  at  486.

[48]     Id. at  504.

[49]     Id. at 503.

[50]     Id. at  508.

[51]     Ibid.

[52]     Ibid.

[53]     Id. at 507.

[54]     (1971) 2 SCC 261.

[55]     Id. at 514.

[56]     Ibid.

[57]     (1994) 1SCC 550.

[58]     Id. at  554.

[59]     Id. at  555.

[60]     (2004) 6 SCC 264.

[61]     Article 51A read as follows(c) to uphold and protect the sovereignty, unity and integrity of India;

        (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

        (f) to value and preserve the rich heritage of our composite culture;

        (h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

        (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

[62]     Id.  at 278

[63]     Id. at 279.

[64]     2007 (5) SCC 113.

 

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