The State of Karnataka & Anr. Vs. The Associated Management of (Govt. Recognized unaided English medium)
Email[Arising out of SLP (C) Nos. 18139-18163 of 2008]
With
Writ Petition (C) No. 290 of 2009
And
Civil Appeal Nos. 5191-5199 of 2013
[Arising out of SLP (C) Nos. 15640-15648 of 2009]
[From the Judgement and Order dated 02.07.2008 of the High Court of Karnataka in Writ Petition Nos. 14363 of 1994 (Education) with Writ Petition Nos. 14377, 15491, 19453, 22563 of 1994, 30645 of 1999, 25647, 18571, 19331, 19337, 18787, 19469, 20165, 17338 of 1994, Writ Appeal No. 2415 of 1995, Writ Petition Nos. 11785, 29540 of 1995, 22752, 19434 of 1994, 900 of 2000, 17677, 19346 of 1994, 34396, 34684 and 34185 of 1996]
[Arising out of SLP (C) Nos. 18139-18163 of 2008]
With
Writ Petition (C) No. 290 of 2009
And
Civil Appeal Nos. 5191-5199 of 2013
[Arising out of SLP (C) Nos. 15640-15648 of 2009]
[From the Judgement and Order dated 02.07.2008 of the High Court of Karnataka in Writ Petition Nos. 14363 of 1994 (Education) with Writ Petition Nos. 14377, 15491, 19453, 22563 of 1994, 30645 of 1999, 25647, 18571, 19331, 19337, 18787, 19469, 20165, 17338 of 1994, Writ Appeal No. 2415 of 1995, Writ Petition Nos. 11785, 29540 of 1995, 22752, 19434 of 1994, 900 of 2000, 17677, 19346 of 1994, 34396, 34684 and 34185 of 1996]
Mr. P.P. Rao, Mr. H. Subramanya Jois, Mr. K.N. Bhat, Mr. T.S. Doabia, Senior Advocates, Mr. K.M. Nataraj, AAG, Ms. Anitha Shenoy, Ms. Visruti Vijay, Ms. K.V. Bharathi Upadhyaya, Mr. Ashwin Koltemath, Mr. Mohan V. Katarki, Mr. Shailesh Madiyal, Mr. Ravi R.S., Mr. Jagjit Singh Chhabra, Mr. P.R. Ramasesh, Ms. Sunita Sharma, Mr. Manpreet Singh Doabia, Mr. S.N. Bhat, Mr. T.V. Ratnam, Mr. K.V. Dhananjay, Mr. Shekhar G. Devasa, Mr. M.P. Srikanth, Mr. V.N. Raghupathy, Mr. Rameshwar Prasad Goyal, Mr. G.R. Mohan, Mrs. Prabha Swami, Mr. Gurudatta Ankolekar, Mr. Kirit S. Javali, Mr. Azeem A. Kalebudde, Mr. Y. Rajagopala Rao, Mr. B.K. Pal, Advocates, with them for the appearing parties.
Constitution of India, 1950
Articles 14, 19(1)(a), 21, 29(2), 30(1), 350A – Language policy in the State of Karnataka – Vide orders dated 29.04.1994, Kannada made medium of instructions in all schools, recognised by State for Class I to Class IV – Permission however given to students of Class II, III and IV to continue same medium in which they were studying – Policy enforced from year 1994-95 – Said policy, if to be applied to unaided government recognised primary schools – If order dated 29.04.1994 was constitutionally valid – Can the permission to start an English medium school be given by High Court – Earlier orders making Kannada as first language held valid and policy re-affirmed vide orders dated 12.04.1994 and then orders dated 29.04.1994 issued – Challenge to both – If issue pertaining to medium of instruction was contested earlier and was decided in English Medium Students Parents Association’s case. Held that the issue decided in English Medium Students Parents Association’s case was if medium of instruction should be mother tongue. Same issue cannot be reopened on different grounds. The question as to whether a student or a parent as citizen has a right to choose medium of instruction, if decided, would contradict earlier judgement. Hence, matter referred to Constitution Bench.
The Committee submitted its report dated 27th January, 1981 which is popularly known as Dr. Gokak Committee Report. (Para 18)
On a consideration of the report, the State Government passed an order dated 30.04.1982 drafting a language policy, which stated that Kannada or mother tongue, shall be the first language. Since it was felt that the order dated 30.04.1982 did not sufficiently reflect the aspirations of the Kannada speaking people, the Government thought it expedient to place the entire matter before the State Legislature. The State Legislature resolved that in the High Schools, Kannada must be the sole first regional language carrying 125 marks. The State Government made an order dated 20.07.1982 wherein the government directed that Kannada shall be the sole first language. Aggrieved by the abovesaid order, some of the educational institutions preferred writ petitions in the High Court of Karnataka. (Para 19)
The Division Bench, by order dated 27.01.1984 referred the abovesaid question to the Full Bench. The full Bench in General Secretary, Linguistic Minorities Protection Committee (supra) expressed its opinion as follows:
8. .The Govt. Order dated 20th July, 1982 in so far it relates to the making of study of Kannada as a compulsory subject to children belonging to linguistic minority groups from the first year of the Primary School and compelling the Primary Schools established by Linguistic Minorities to introduce it as a compulsory subject from the first year of the Primary School and also in so far it compels the students joining High Schools to take Kannada as the sole first language and compelling the high schools established by linguistic minorities to introduce Kannada as the sole first language in the Secondary Schools, is violative of Articles 29(1), 30(1) and 14 of the Constitution.
After rendering such opinion, the matter was sent back to the Division Bench for disposal in accordance with the same and, accordingly, the cases were dismissed by judgment dated 25.01.1989. Against this judgment, the State of Karnataka came up in appeal. (Para 19 & 19.1.)
Pending the civil appeal before this Court, the Government of Karnataka issued a GO dated 19.06.1989, prescribing the mother tongue shall be the medium of instruction from Ist to 4th standard. (Para 20)
The validity of the abovesaid GO was questioned in the Writ. (Para 20.1.)
By order dated 08.12.1993, this Court while upholding the GO dated 19.06.1989 dismissed the writ petition being No. 536 of 1991 as devoid of merits. (Para 22)
As regards the Civil Appeal Nos. 2856-57 of 1989 filed against the full Bench decision of the High Court of Karnataka, it was held that the majority opinion of the High Court has approached the matter in a proper perspective. (Para 23)
In the light of the order dated 08.12.1993, the Government of Karnataka issued revised Government Orders dated 22.04.1994/29.04.1994 purporting to re-affirm its policy set out in its earlier order dated 19.06.1989. (Para 24)
Writ Petition No. 536 of 1991 was filed in order to challenge the validity of the GO dated 19.06.1989 which proposed to introduce mother tongue as the medium of instruction and the same has been dismissed as devoid of merits. Hence, in view of the above, this Court upheld the mother tongue as the medium of instruction in the primary education. (Para 29)
However, the impugned GOs dated 22.04.1994/29.04.1994 were not similar to GO dated 19.06.1989. The said impugned order reframed the earlier order by adding few additional clauses, which were the matter of dispute in the writ petition before the High Court and this Court. (Para 30)
The additional clauses inserted in the impugned order, viz., Clause Nos. 2, 3, 6 and 8 compels the child to study in mother tongue or regional language which was seriously contested before the High Court and this Court. (Para 30.1.)
A two-Judge Bench of this Court has already arrived at a decision as to the question whether the medium of instruction should be that of mother tongue in English Medium Students Parents Association (supra), it is not appropriate to decide the very same issue under different grounds by a Bench of same number of judges. If we decide to accept the argument of the respondent that a student or a parent or a citizen has a right to choose a medium of instruction at primary stage, we in substance will be contradicting the judgment in English Medium Students Parents Association (supra), which upholds the mother tongue as the medium of language. (Para 32)
The following questions are relevant for consideration by the Constitution Bench which are as under:
(i) What does Mother tongue mean? If it referred to as the language in which the child is comfortable with, then who will decide the same?
(ii) Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?
(iii) Does the imposition of mother tongue in any way affects the fundamental rights under Article 14, 19, 29 and 30 of the Constitution?
(iv) Whether the Government recognized schools are inclusive of both government-aided schools and private & unaided schools?
(v) Whether the State can by virtue of Article 350-A of the Constitution compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary schools? (Para 36)
2. General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka [AIR 1989 Kant 226] (Para 8)
1. Leave granted in all the special leave petitions.
SLP (C) Nos. 18139-18163 of 2008
2. These appeals have been filed against the final judgment and order dated 02.07.2008 passed by the High Court of Karnataka at Bangalore in Writ Petition No. 14363 of 1994 connected with Writ Petition Nos. 14377, 15491, 19453, 22563, 25647, 18571, 19331, 17337, 18787, 19469, 20165, 17338, 22752, 19434, 17677, 19346 of 1994, Writ Appeal No. 2415 of 1995, Writ Petition Nos. 11785, 29540 of 1995, Writ Petition Nos. 34396, 34684, 34185 of 1996, Writ Petition No. 30645 of 1999 and Writ Petition No. 900 of 2000 whereby the High Court partly allowed the writ petitions filed by the respondents herein.
3. Brief facts:
(a) The Associated Management of Govt. Recognized Primary and Secondary Schools Association is a society registered under the Karnataka Societies Registration Act , 1960 (in short the Society)-Respondent herein, consisting of recognized, unaided, English medium, primary and secondary schools in the State of Karnataka. On 19.06.1989, the Government of Karnataka, in pursuance of Constitutional mandate under Article 350A of the Constitution of India, spelt out its language policy by way of a Government Order specifying the mother tongue as the medium of instruction at the primary school level and making it mandatory for every child who has not opted for Kannada as the first language to take it as a second language. The aforesaid order was challenged before this Court in English Medium Students Parents Association v. The State of Karnataka & Ors. [JT 1993 (6) SC 634 : 1994 (1) SCC 550], wherein, by order dated 08.12.1993, this Court, while upholding the Government Order dated 19.06.1989, declined to interfere in the matter.
(b) In the light of the aforesaid order dated 08.12.1993, the Government of Karnataka issued a revised Government Order dated 22.04.1994 purporting to re-affirm its policy set out in its earlier order dated 19.06.1989. The Government of Karnataka, having regard to the difficulties and hardships involved in converting English medium schools to Kannada medium schools, resorted to make the policy applicable to the English medium schools from the year 1989. In supersession of all the earlier orders, the Government of Karnataka issued subsequent Government Order dated 29.04.1994 indicating the language policy to be followed in the State with effect from the Academic Year 1994-1995. As per the said order, the medium of instruction from 1st to 4th standard in all schools recognized by the State Government shall be either the mother tongue or Kannada from the Academic Year 1994-1995, however, permission was granted to the students studying in 2nd, 3rd and 4th standards to continue in the medium of language they were studying at that time. It was also ordered to close down all the unauthorized schools that were not fulfilling the prescribed conditions.
(c) In pursuance of the impugned Government Order, consequential orders were issued to several schools calling upon them to change the medium of instruction and to effect other consequential changes. Being aggrieved of the impugned orders, various linguistic and religious minorities, religious denominations, parents, parents associations, children through their parents and educational institutions run by the majority filed Writ Petition being No. 14363 of 1994 and connected writ petitions before the High Court of Karnataka questioning the constitutional validity of the Government Orders dated 22.04.1994 and 29.04.1994 as being violative of Articles 14, 19(1)(a), 21, 29(2) and 30(1) of the Constitution of India.
(d) The full Bench of the High Court, by order dated 02.07.2008, partly allowed the writ petition and the connected petitions while upholding the Government Order and quashed clause Nos 2, 3, 6 and 8 of the impugned Government Order dated 29.04.1994 in its application to schools other than the schools run or aided by the Government.
(e) Being aggrieved, the State of Karnataka has preferred these appeals by way of special leave before this Court.
Writ Petition (C) No. 290 of 2009
4. Apart from the above appeals, 15 residents of the State of Karnataka, claiming as eminent educationists, deeply interested in the subject, namely, that primary education from 1st to 4th standard in all Government recognized schools should be in the mother tongue of the children concerned filed Writ Petition No. 290 of 2009 under Article 32 of the Constitution of India praying to declare that the Government Order dated 29.04.1994 is constitutionally valid in respect of unaided government recognized primary schools also and to issue a writ of mandamus directing the State Government to implement its order dated 29.04.2004 accordingly.
SLP (C) Nos. 15640-15648 of 2009
4.1. The above said petitions have been filed by various officers of the Education Department of the State of Karnataka-the appellants herein against the order dated 03.07.2009, passed by learned Single Judge of the Karnataka High Court, directing them to accord permission to Shubodaya Vidya Samsthe and Saraswathi Education Society-the respondents herein to start an English Medium School in the State during the pendency of the appeal before this Court.
5. Since the relief sought for in the appeals and the writ petition pertains to the same subject-matter, they are being dealt with by the present order.
6. Heard Mr. P.P. Rao, Mr. H. Subramanya Jois, learned senior counsel for the appellants and Mr. Mohan V. Katarki, learned counsel for the respondents and Mr. T.S. Doabia, learned senior counsel for the Union of India.
7. The Government of Karnataka, by order dated 20.07.1982, prescribed that Kannada shall be the sole first language from 1st standard of primary school itself. The constitutional validity of this order was challenged in a number of writ petitions before the High Court of Karnataka by linguistic minorities contending that they have a right to have primary education in their respective mother tongue and, therefore, prescription of Kannada as the sole language in which education should be imparted from 1st standard itself is unconstitutional and violative of Articles 14, 19, 21, 29 and 30 of the Constitution.
8. Considering the importance of the matter, the same was heard by a Full Bench of the Karnataka High Court in General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka [AIR 1989 Kant 226]. After considering the claim of all the parties concerned and also the opinion of various committees, the Full Bench, by order dated 25.01.1989, held that the Government Order dated 20.07.1982 is unconstitutional to the extent that it made Kannada a compulsory and sole subject for all children in the State of Karnataka from 1st standard and deprived the petitioners therein whose mother tongue was not Kannada to have primary education in their mother tongue. Along with the said petitioner(s), a writ petition was also filed by English Medium Students Parents Association claiming that they have the right to have primary education in English language as substantial number of members of the said organization were converted Christians and, therefore, they have the right to have primary education in English. The said request was negatived by the full Bench, however, liberty was given to the State to formulate its language policy. Aggrieved of the said order of the full Bench of the Karnataka High Court, the State Government preferred an appeal before this Court. However, after having preferred an appeal, the State Government accepted the principle that primary education from 1st to 4th standard should be in mother tongue and issued a Government Order (GO) dated 19.06.1989 in conformity with the judgment of the Full Bench of the Karnataka High Court, inter alia, prescribing that mother tongue shall be the medium of instruction from 1st to 4th standard while the appeal was pending before this Court.
9. The English Medium Students Parents Association filed a writ petition under Article 32 before this Court questioning the constitutional validity of the GO dated 19.06.1989 on the ground that prescription of mother tongue as the sole language of instruction from 1st to 4th standard was unconstitutional and violative of Articles 29 and 30 of the Constitution as it interfered with the right to have primary education at that level in English.
10. The appeals filed by the Government of Karnataka and the writ petition filed by the English Medium Students Parents Association were heard together and decided by a common judgment of this Court in English Medium Students Parents Association (supra). By order dated 08.12.1993, this Court upheld the decision of the Full Bench of the Karnataka High Court. Thereafter, the State Government made an order dated 22.04.1994 in conformity with the judgment of this Court prescribing that mother tongue of the children or the regional language shall be the language in which education shall be imparted from 1st to 4th standard. In the said order, the State Government exempted the educational institutions to which permission had been granted earlier to 1989 from giving instruction in primary education from 1st to 4th standard in mother tongue. This created incongruity for the reason that in view of the said exemption, there would be two categories of primary schools in that one set started prior to 1989 with English medium would continue primary education in English whereas primary schools started after 1989 were bound to impart primary education in mother tongue. When this contradiction was brought to the notice of the Government, the Government immediately modified the order dated 22.04.1994 by another order dated 29.04.1994 removing the exemption.
11. The Associated Management of Primary and Secondary Schools, Karnataka filed Writ Petition No. 14363 of 1994 before the High Court challenging the constitutional validity of the aforesaid two GOs dated 22.04.1994 and 29.04.1994. The State Government filed its statement of objection to the writ petition stating that by judgment dated 08.12.1993, the policy of the State Government prescribing mother tongue as the language in which the primary education from 1st to 4th standard should be imparted was constitutionally held valid by this Court and the impugned orders were similar in that both prescribed that primary education from 1st to 4th shall be the mother tongue of the children. The Full Bench before which the said writ petition was posted ultimately concluded on 02.07.2008 holding that the Government orders dated 22.04.1994 and 29.04.1994 were applicable only to Government and government aided private schools but not to private and unaided primary schools, though they were also government recognized schools.
Contentions of the Appellants:
12. Mr. P.P. Rao, learned senior counsel for the State of Karnataka, by taking us through various articles of the Constitution and the provisions of the Karnataka Education Act, 1983 and the Right of Children to Free and Compulsory Education Act, 2009 (in short the RTE Act) as well as various decisions of this Court submitted that the High Court committed an error in not following the decision of this Court in English Medium Students Parents Association (supra) in which this Court upheld the Government Order prescribing that primary education shall be in mother tongue. He also pointed out that the High Court has equally committed an error in holding that this Court did not go into the question as to whether a parent or a student has a right to choose the medium of instruction at the primary school stage when that was the very question raised by the petitioners therein and rejected by this Court. He further pointed out that the High Court erred in holding that the parent and the child (pupil) have a fundamental right of the choice of medium of instruction at primary level as against the policy decision taken by the State in larger national and educational interest of the children. According to him, the High Court failed to take note of Article 350A of the Constitution which stipulates that every endeavor shall be made by the State and Local Authority to provide adequate facilities for instructions in mother tongue at the primary stage of education and empower the State to lay down its education policy that primary education shall be in the mother tongue of the children concerned. He further contended that the High Court equally committed an error in holding that primary education shall be in mother tongue only in respect of government and government aided schools notwithstanding the fact that all schools belonged to one category as recognized schools and alone can impart education. Finally, he submitted that the policy of the Government to have uniform policy in the matter of primary education is not only applicable to Government and Government Aided institutions but also to unaided institutions which was approved by this Court in English Medium Students Parents Association (supra).
13. The individuals claiming as educationalists fighting for Kannada language who filed writ petition under Article 32 of the Constitution also adopted the similar arguments.
Contentions of the Respondents:
14. On the other hand, various learned counsel appearing for unaided Management Schools, Linguistic Minority Institutions, Parents and Students submitted that the earlier decision of this Court, namely, English Medium Students Parents Association (supra) did not go into the medium of instruction and the issue therein was mother tongue/Kannada as one of the language and parents/children have every right to choose the medium according to their choice. In their view, the High Court is fully justified in quashing those offending clauses and there is no merit in any of the contentions raised by the State and other persons who are all supporting the stand of the State.
Discussion:
15. We have carefully considered the rival contentions, perused the constitutional provisions, various clauses in the impugned orders and decisions relied on by both sides.
16. The entire argument of both the sides is whether in English Medium Students Parents Association (supra) the issue pertaining to medium of instruction was contested and a decision was arrived at in that regard? In light of the above, it is essential to comprehend the ratio laid down in the said decision to arrive at a decision in this matter.
17. At the cost of repetition, it is useful to reiterate the factual background of the English Medium Students Parents Association (supra) for better comprehension. Government of Karnataka, wedded to the cause of promotion of Kannada language, appointed a Committee of six persons with Dr. V.K. Gokak as the Chairman and referred the following questions:
(i) Should Sanskrit remain as the subject for study in the school syllabus?
(ii) If so, how to retain it without its being an alternative for Kannada?
(iii) Would it be proper to have Kannada as a compulsory subject as per the three language formula and should the option of selecting the remaining two languages be left to students themselves?
18. The Committee submitted its report dated 27th January, 1981 which is popularly known as Dr. Gokak Committee Report. The gist of the recommendations is as under:
(i) Kannada should be introduced as a compulsory subject for all children from 3rd Standard;
(ii) Kannada should be the sole first language for the Higher Secondary Schools (i.e., 8th, 9th and 10th Standards) carrying 150 marks, and this should be implemented for Kannada speaking people from 1981-82 itself and in respect of others from 1986-87, after taking necessary steps to teach Kannada to them from the 3rd standard from the academic year 1981-82 itself.
19. On a consideration of the abovesaid report, the State Government passed an order dated 30.04.1982 drafting a language policy, which stated that Kannada or mother tongue, shall be the first language. Since it was felt that the order dated 30.04.1982 did not sufficiently reflect the aspirations of the Kannada speaking people, the Government thought it expedient to place the entire matter before the State Legislature. The State Legislature resolved that in the High Schools, Kannada must be the sole first regional language carrying 125 marks. In addition, a student might study any two languages carrying 100 marks each. In accordance with the above Resolution, the State Government made an order dated 20.07.1982 wherein the government directed that Kannada shall be the sole first language. Aggrieved by the abovesaid order, some of the educational institutions preferred writ petitions in the High Court of Karnataka. It was contended that the order was violative of the rights of minorities under Articles 29 and 30 of the Constitution of India. Initially, when the writ petitions came up for hearing before a Single Judge, the matters were referred to a Division Bench. The Division Bench, by order dated 27.01.1984 referred the abovesaid question to the Full Bench. The full Bench in General Secretary, Linguistic Minorities Protection Committee (supra) expressed its opinion as follows:
8. .The Govt. Order dated 20th July, 1982 in so far it relates to the making of study of Kannada as a compulsory subject to children belonging to linguistic minority groups from the first year of the Primary School and compelling the Primary Schools established by Linguistic Minorities to introduce it as a compulsory subject from the first year of the Primary School and also in so far it compels the students joining High Schools to take Kannada as the sole first language and compelling the high schools established by linguistic minorities to introduce Kannada as the sole first language in the Secondary Schools, is violative of Articles 29(1), 30(1) and 14 of the Constitution.
19.1. After rendering such opinion, the matter was sent back to the Division Bench for disposal in accordance with the same and, accordingly, the cases were dismissed by judgment dated 25.01.1989. Against this judgment, the State of Karnataka came up in appeal in Civil Appeal Nos. 2856-57 of 1989.
20. After the decision of the full Bench, pending the civil appeal before this Court, the Government of Karnataka issued a GO dated 19.06.1989, prescribing the mother tongue shall be the medium of instruction from Ist to 4th standard. The relevant paragraph of the said order is as under:
9. ..Govt., are pleased to order that the following language policy shall be implemented in the primary and Secondary Schools pending final decision of the Supreme Court.
From 1st Standard to IVth Standard, mother tongue will be the medium of instruction, where it is expected that normally only one language from Appendix-1 will be the compulsory subject of study.
20.1. The validity of the abovesaid GO was questioned in the Writ Petition No. 536 of 1991 before this Court on the ground that it is violative of Articles 29, 30 and 14 of the Constitution of India.
21. In the meantime, a corrigendum came to be issued on 22.06.1989, which reads as under:
16For para (i) of Order portion of the above said Govt. order dated 19.6.1989 i.e., from the words ‘From 1st standard…subject to study’ the following para shall be substituted:
From 1st standard to IVth standard, where it is expected that normally mother tongue will be the medium of instruction, only one language from Appendix-I will be compulsory subject of study.
22. With this background, by order dated 08.12.1993, this Court while upholding the GO dated 19.06.1989 dismissed the writ petition being No. 536 of 1991 as devoid of merits.
23. As regards the Civil Appeal Nos. 2856-57 of 1989 filed against the full Bench decision of the High Court of Karnataka, it was held that the majority opinion of the High Court has approached the matter in a proper perspective and concluded as under:
25…We have no difficulty in upholding the well-considered judgment of the High court. In fact, the State has accepted the position and issued G.O. dated 19.6.89 which is impugned in W.P. No. 536 of 1991. Therefore, the civil appeals will also dismissed. However, in the circumstances of the case, there shall be no order as to costs.
24. In the light of the aforesaid order dated 08.12.1993, the Government of Karnataka issued revised Government Orders dated 22.04.1994/29.04.1994 purporting to re-affirm its policy set out in its earlier order dated 19.06.1989. Now, let us test the contentions of the appellants and the respondents in light of the above verdict.
25. Learned senior counsel for the appellants contended that GO dated 29.04.1994 is based on the judgment of the full Bench of the Karnataka High Court as affirmed in English Medium Students Parents Association (supra) by this Court, therefore, there is no infirmity in the same which came to be passed in the light of GO dated 19.06.1989.
26. While it is argued from the side of the respondents that judgment in English Medium Students Parents Association (supra) is with reference to the GO dated 19.06.1989 whereas the subject matter of the present writ petition is the GO dated 29.04.1994. Further, it was submitted that in English Medium Students Parents Association (supra) it was held that the order dated 19.06.1989 is not open to challenge because there was no element of compulsion in studying Kannada at the primary stage and that from standard 1st to 4th where mother tongue will be the medium of instruction, only one language from Schedule I thereof will be compulsory and further from standard 3rd onwards Kannada will be an optional subject for non-Kannada speaking students whereas the GO impugned in this writ petition departs and deviates from the GO dated 19.06.1989, the validity of which was upheld by this Court. Kannada is covertly made compulsory by the present impugned order under clause 2, 3, 6 & 8. Hence, the judgment of this Court does not and cannot come in the way of considering the present writ petition on merits. Therefore, the contention of the respondents is that the fundamental rights of citizens cannot be infringed by the State taking shelter under the policy.
27. The full Bench of the High Court, by order dated 02.07.2008, decided the issue in the following words in the impugned judgment:
79. It cannot be disputed these clauses were conspicuously missing in the Government order dated 19.06.1989. They are introduced for the first time in Government Order dated 29.04.1994. the validity of these clauses were not the subject matter of earlier proceeding either before this Court or Apex Court. The Constitutional validity of these clauses was not challenged earlier, no arguments were addressed for or against the said clauses, neither this court nor the Apex Court considered the validity of these clauses nor any decision was rendered. It is for the first time, the aforesaid clauses are challenged before this Court. Therefore, the aforesaid decisions do not conclude the matter in issue in this writ petition.
90. As is clear from the facts set out above in the aforesaid Full Bench Judgment, the question for consideration was, whether the Government Order making study of kannada compulsory from the First Year of primary School in addition to mother tongue of the land was violative of Article 14, 29 and 30 of the Constitution and the Government Order prescribing Kannada as sole First language at High School level was also violative of Article 14, 19 and 30 of the Constitution. In the Government Order dated 19.06.1989, which was also the subject matter of the Writ petition under 32 of the Constitution of India before the Supreme Court, the question was again only one language from Appendix-I could be the compulsory subject of study. The full Bench struck down the earlier Government Order as there was compulsion to study Kannada and therefore violative of Article 19, 21 and 30 which finding was upheld by the Supreme Court. For the same reason the Supreme Court declined to interfere with the subsequent Government Order dated 19.06.1989 as there was no compulsion to study any particular language from I to IV Standard, as is clear from Clause I of the Government Order. Therefore, the ratio decidendi, of the Judgment of the Apex Court as well as the full bench is If there is an element of compulsion in the Government policy, which infringes the fundamental rights guaranteed to the citizens of this country under the Indian Constitution, such policy is void and the fundamental rights have to prevail over such governmental policy. In the absence of such compulsion the courts should not interfere with the policy decision of the Government. The question whether a student, a parent or a citizen has a right to choose a medium of instruction at primary stage other than mother tongue or regional language was not the subject matter of the aforesaid proceedings and the said question was not considered either by this court or by the Apex Court and no decision rendered in the aforesaid proceedings on the said point. The casual expressions, observations, conclusions and the suggestions made in the earlier full bench judgment cannot be construed as a ratio decidendi, especially in constitutional matters, as the said question did not arise for consideration in the said case. Therefore the contention that the question involved in this Writ Petition are squarely covered by the earlier decisions of this Court and Apex Court is without any substance and accordingly it is rejected.
28. In the line of above observation, the High Court accepted the contentions of the respondents that this Court in English Medium Students Parents Association (supra) did not consider the issue raised in the present writ petition and went on to deliver the impugned judgment.
29. After due consideration of the contentions of the appellants and the respondents and reasoning of the High Court in the impugned judgment dated 02.07.2008, we are of the view that issue contemplated in the writ petition before the High Court is not untouched by the decision in English Medium Students Parents Association (supra). As already mentioned, Writ Petition No. 536 of 1991 was filed in order to challenge the validity of the GO dated 19.06.1989 which proposed to introduce mother tongue as the medium of instruction and the same has been dismissed as devoid of merits. Hence, in view of the above, this Court upheld the mother tongue as the medium of instruction in the primary education.
30. However, it is equally correct that the impugned GOs dated 22.04.1994/29.04.1994 were not similar to GO dated 19.06.1989. Since the said impugned order reframed the earlier order by adding few additional clauses, which were the matter of dispute in the writ petition before the High Court and this Court, a reference to the contested clauses in the impugned order shall be timely:
Proceedings of Government of Karnataka
Sub: Regarding implementation of languages Policy in the primary and high schools.
Government Order No. ED 28 PGC 94
Bangalore dated 29.04.1994
1. xxx
2. The medium of instruction should be mother tongue or Kannada, with effect from the academic year 1994-95 in all Government recognized schools in classes 1 to 4.
3. The students admitted to 1st standard with effect from the academic year 94-95, should be taught in mother tongue or Kannada medium.
6. Permission can be granted to only students whose mother tongue is English, to study in English medium in classes 1 to 4 in existing recognized English medium schools.
8. It is directed that all unrecognized schools which do not comply with the above conditions, will be closed down.
30.1. Therefore, the contention of the State is partly correct when it says that the impugned GOs viz., 22.04.1994/29.04.1994 are in substance similar to GO dated 19.06.1989 since both the GOs stipulated the need for the child to acquire the primary education in the mother tongue. However, the additional clauses inserted in the impugned order, viz., Clause Nos. 2, 3, 6 and 8 compels the child to study in mother tongue or regional language which was seriously contested before the High Court and this Court.
31. While deciding the validity of these additional clauses in the impugned GO, the High Court further went on to state that the question whether a student, a parent or a citizen has a right to choose a medium of instruction at primary stage other than mother tongue or regional language was not decided in the English Medium Students Parents Association (supra) case and took the liberty to decide the same.
32. Observing the fact that a two-Judge Bench of this Court has already arrived at a decision as to the question whether the medium of instruction should be that of mother tongue in English Medium Students Parents Association (supra), we are of the view that it is not appropriate to decide the very same issue under different grounds by a Bench of same number of judges. If we decide to accept the argument of the respondent that a student or a parent or a citizen has a right to choose a medium of instruction at primary stage, we in substance will be contradicting the judgment in English Medium Students Parents Association (supra), which upholds the mother tongue as the medium of language.
33. Having given our most anxious consideration, we are of the opinion that it is a fit case for consideration by a larger bench.
34. The crux of all the grounds raised in the petition is that whether the mother tongue or the regional language can be imposed by the State as the medium of instruction at the primary education stage.
35. The vital question involved in this petition has a far-reaching significance on the development of the children in our country who are the future adults. The primary school years of a child is an important phase in a childs education. Besides, it moulds the thinking process and tutors on the communication skills. Thus, primary education lays the groundwork for future learning and success. Succinctly, the skills and values that primary education instills are no less than foundational and serve as bases for all future learning. Likewise, the importance of a language cannot be understated; we must recollect that reorganization of States was primarily based on language. Further, the issue involved in this case concerns about the fundamental rights of not only the present generation but also the generations yet to be born.
36. Considering the constitutional importance of these questions, we are of the firm view that all these matters should be heard by a Constitution Bench. With regard to the above, the following questions are relevant for consideration by the Constitution Bench which are as under:
(i) What does Mother tongue mean? If it referred to as the language in which the child is comfortable with, then who will decide the same?
(ii) Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?
(iii) Does the imposition of mother tongue in any way affects the fundamental rights under Article 14, 19, 29 and 30 of the Constitution?
(iv) Whether the Government recognized schools are inclusive of both government-aided schools and private & unaided schools?
(v) Whether the State can by virtue of Article 350-A of the Constitution compel the linguistic minorities to choose their mother tongue only as medium of instruction in primary schools?
36.1. Apart from the above said issues, the Constitution Bench would also take into consideration any other ancillary or incidental questions which may arise during the course of hearing of the case.
37. With regard to the above, all the connected matters including petitions/applications shall be placed before the Constitution Bench. Since the matter in issue started in the year 1994, early disposal of the case is desirable. Hence, the Registry is directed to place the same before Honble the Chief Justice of India for necessary directions.
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