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IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (Under Article 136 of the Constitution of India)

S.L.P. (Civil) Nos.18139-18163 of 2008

(Arising from the common Order and Judgment of the High Court of Karnataka dt. 02-Jul-2008 in Writ Petition No.14363/1994 (Education) and 23 other Writ Petitions and 1 Writ Appeal)

BETWEEN:

State of Karnataka And Anr Petitioner

AND

Associated Management of (Govt. Recognised Unaided English Medium) Primary And Secondary Schools And Ors. ETC

Respondents

STATEMENT OF OBJECTIONS OF RESPONDENT, (S.K.N.

CHARITABLE TRUST) in S.L.P (Civil) No.181**1 of 2008,

181**2 of 2008 AND 181**3 of 2008.

1. I, ANOOP N PATEL, aged about 30 years and Secretary of

S.K.N. Charitable Trust, a Registered Trust situated at

‘SRIRANGA’, Sharavathy Nagar East, Besides ‘HOSAMANE’

Church, Shimoga 577 201, Karnataka having come down to

New Delhi, do hereby solemnly affirm and state on oath as

under:

2. That I am the Secretary Respondent Trust in S.L.P. (Civil)

181** of 2008, 181** of 2008 and 181** of 2008 preferred

by the State of Karnataka and so, authorised and competent 1 Arising from the Common Order of the Court below in W.P***. (Education)2 Arising from the Common Order of the Court below in W.P***. (Education)3 Arising from the Common Order of the Court below in W.P***. (Education)

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to conduct this legal proceeding. I am fully conversant with

the facts and circumstances of this case and so, competent

to swear to this Affidavit.

3. The Respondent ‘Trust’ is registered under the State Law in

force for the Registration of ‘Societies’ and has been

continually registered at all relevant times. The Respondent

Trust has established and administers educational

institutions for primary education at Vidyanagar4, Shimoga

577 201, Gopala5, Shimoga 577 201 and Ram Manohar

Lohia Nagar6, Shimoga 577201, Karnataka. None of the

educational institutions established and administered by the

Respondent Trust receive aid7 or assistance of any kind from

the Government, State or Central.

4. I have read over and understood the contents of the Dates

and Events, Special Leave Petition and the Grounds cited by

the petitioner. All statements made in support of the

petition are denied to be false except where specifically

admitted.

PRELIMINARY SUBMISSIONS

BURDEN UPON STATE TO PROVE HARM UPON A CHILD, TO A

MEDICAL CERTAINTY:

5. The State argues that a child who receives primary

education in a language other than its mother tongue is

hurt or is perceptibly harmed. The Respondent submits that

Sociologists, Psychologists, linguists, educationalists and 4 SRI VIVEKANANDA MEMORIAL SCHOOL, Vidyanagar5 SRI VIVEKANANDA MEMORIAL SCHOOL, Gopala6 SRI VEVEKANANDA MEMORIAL SCHOOL, Ram Manohar Lohia Nagar

7 Section 2(18) of the Karnataka Education Act, 1983 defines ‘Grant’ as“means any sum of money paid as aid out of the State funds to any educational institution”.

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medical practitioners around the world do not subscribe to

any such theory.

6. It is now well established that languages are not genetically

imprinted in a human being. It was once believed that a

language imprint resided in a child and that a child had a

genetic preference to one language over other languages.

Scientific studies have conclusively established that such

theories are baseless and superstitious8.

7. A child acquires the language of its environment. English is

now spoken widely in our country and a child who is

exposed to English language in his environment is not

disabled from learning it merely because his parents are not

native speakers of the English language.

8. The Respondent further submits that technological

advances in the field of brain imaging have led to startling

findings that visually prove that the region of the brain

associated with language learning sheds its sensitivity

progressively. This means, a person loses a corresponding

ability to learn a new language with ease beyond the

formative years.

9. In other words, with the aid of Functional Magnetic

Resonance Imaging (FMRI) equipment, scientists are now

increasingly concluding that in most people, the region of

the brain which is involved in the assimilation of a language

loses its sensitivity with the progression in biological age9. 8 “…This follows from the fact that we do not seem to be genetically predisposed to learn any particular human language; the same infant will acquire English if surrounded by English input, or any other language if the relevant input is available...”The Routledge Companion To Semiotics And Linguistics. By: Paul Lobley, 2008 Edition, page 1129 “…FMRI is increasingly being used to identify areas of the brain implicated in language processing. The noninvasiveness of FMRI studies of language allows investigation into the normal

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10. Given that the said findings are consistent with a widely

held preference in urban India for English medium

education for primary education, the State is wholly

unjustified in depriving parents of their right to choose

English medium instruction for their children.

11. In view of the fact that the State claims that its language

policy is supported by physiological and psychological

evidence, the State is effectively under a burden to prove to

a medical certainty that a child who receives primary

education in a language which is not his mother tongue is

perceptibly harmed. The Respondent submits that such an

argument borders on medical superstition.

ONE HALF OF THE LANGUAGE POLICY CONTRADICTS THE

OTHER HALF –

THE MEDIUM OF

INSTRUCTION SHOULD

BE MOTHER TONGUE

VS.

THE MEDIUM OF

INSTRUCTION SHOULD BE

MOTHER TONGUE OR

KANNADA

12. The State commits an irreconcilable contradiction in its

‘language policy’. The State says here and before the Court

below that ‘a child shall be instructed in its mother tongue

only for standards I to V’. The State claims all kinds of

justification for such a measure. It further claims that a child

is ‘incalculably harmed’ when it is instructed in a language

and pathological organization of the neural networks that process language functions “(page 162)

“…The window of plasticity observed in the brain depends in part on when language laterality is established and consolidated. The period of neural plasticity for language is believed to extend through age 5 or 6 years ( Balsanto et al, 2002, Gaillard et al, 2005, Janszky, Jokeit, et al, 2003, Muller and Courchesne, 2000)…”Brain, Behavior And Learning in Language And Reading Disorders. By Maria Mody, Elaine R Sillivan. 2008 Edition.

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other than ‘its mother tongue’. Given such conviction, it is

hard to fathom how the State can contradict one half of its

policy by the other half. The ‘language policy’ of the State

says:

‘The medium of instruction should be mother tongue

or Kannada, with effect from the academic year 1994-

95 in all Government recognised schools in classes 1

to 4’.

13. As seen from the above, the other half of its policy says that

‘KANNADA’ may be chosen as the ‘medium of instruction’

by a child who does not have ‘KANNADA’ as its mother

tongue. That is, the first part says that a child whose mother

tongue is ‘MALAYALAM’ is required by the State to choose

‘MALAYALAM’ as its ‘medium of instruction’. The State

suggests that, a ‘Non-MALAYALAM’ language harms the

child. Having said so much, it remains to ask why the State

claims that, ‘instead of MALAYALAM, the child may choose

KANNADA and KANNADA does not harm a child even if it is

not its mother tongue’.

14. Such utter contradiction is fatal to the ‘language policy’ of

the State. A State that maintains that ‘a child should be

instructed only in its mother tongue’ cannot concede at all

that the ‘child whose mother tongue is not KANNADA is not

harmed at all when it chooses KANNADA as its medium of

instruction’.

15. Yet, the language policy precisely says – ‘you may or may

not choose your mother tongue as your ‘medium of

instruction’, but, ‘if you do not want your mother tongue as

your medium of instruction, then we do not allow you to

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choose a language of your choice. You shall choose

KANNADA only’. In all humility, the Respondent submits that

a State cannot make a law on such outrageous terms as the

one at present.

THE CONCEPT OF ‘MOTHER TONGUE’ CANNOT BE LEGALLY

SETTLED IN A LINGUISTICALLY DIVERSE COUNTRY SUCH AS

INDIA

16. The concept of a ‘mother tongue’ cannot be settled to a

legal certainty. Accordingly, a law founded upon a concept

that admits of no legal definition must necessarily invade

and obstruct profound rights of the citizens. The State has

failed to define the concept of ‘mother tongue’ and has

offered no guideline whatsoever to resolve what would be a

‘mother tongue’ under the following circumstances:

i. Husband speaks Kannada and wife speaks Dogri, a

thinly spoken language in North India. Both parents

prefer that Dogri as a medium of instruction is not

desirable for the child;

ii. Husband speaks Kannada and wife speaks Konkani.

Though Konkani is widely spoken in the northern and

border parts of Karnataka, both parents prefer that

Konkani is not desirable as a medium of instruction for

the child in view of the fact that Konkani does not

have a script of its own;

iii. Husband speaks Kannada and wife speaks Hindi. Both

parents speak to one another in English. Both parents

prefer that English is desirable as a medium of

instruction though English is not the native language

of either parent;

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iv. Husband speaks Kannada and wife speaks Kannada

and English. Both parents speak to one another in

Kannada. Both parents prefer that English is desirable

as a medium of instruction though English is not the

native language of either parent;

v. Husband speaks Tamil and wife speaks Tamil. Both

parents speak to one another in Kannada. Both

parents prefer that English is desirable as a medium of

instruction though English is not the native language

of either parent and neither parent is very efficient in

the English language;

vi. Husband speaks Telugu and wife speaks Hindi.

Husband prefers Telugu as the medium of instruction

whereas the wife prefers English as the medium of

instruction. Though, neither parent prefer their native

languages, the mother wishes to impart education for

her child in a language that is neither the native

language of either parent nor a preferred choice of

both parents.

The language policy of the State fails to address any of the

above questions and is therefore, made without any regard

to the fact that ‘Karnataka is not a monolingual State’.

17. The Government Order No.ED/28/PGC/94 dated 29-Apr-1994

is a drastic usurpation of the right of a child and its parents.

A law of this flavour is unknown to the democratic world.

Similar or exact attempts by Governments of other States in

the Country have received strong disapproval in the hands

of this Court.

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18. The settled and well established constitutional

jurisprudence emanating from this Hon’ble Court has been

the basis for the Judgment of the Court below. The State has

failed to state if the ‘interpretation’ placed by the Court

below on one or more Judgments of this Court is

‘erroneous’.

19. The State has failed to state what, if any, ‘errors’ have been

committed by the Court below and why it ‘categorises’ the

judgment of the Court below as ‘made in error’. Both sides

made their arguments before the Court below and the

Court, upon consideration of conflicting assertions, has

made a choice of that ‘assertion’ which is consistent with

one or Judgments of this Court. The State simply says that

the Court below committed an ‘error’ without saying why it

considers the same to be an ‘error’. In The Respondents are

therefore deprived of the benefit of knowing why the State

claims the judgment of the Court below to have been made

in ‘error’. The Respondent is therefore, enormously

burdened in the matter of objecting to this petition.

Nevertheless, a humble attempt follows below.

20. The State has made a drastic usurpation of the most

profound right of a child and its parent to choose a medium

of instruction of their choice. No country in the free world

has gone so far.

21. Some State Governments in the country had previously

issued similar or exact laws and not one court in this

country has upheld any such law so far. Every such law has

been struck down by the jurisdictional High Court and upon

appeal, by this Hon’ble Court. Given this judicial history,

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upon the issue of ‘Medium of Instruction’ the Respondent

humbly submits that the instant petition is not

distinguishable at all from attempts by other States that

have been struck down by Courts on earlier occasions.

22. The subject of this appeal is the constitutionality of

offending provisions of Order No.ED/28/PGC/94 of the

Government of Karnataka dated 29-Apr-1994 (referred to as

the ‘language policy’ of the State). The said Order mandates

a ‘compulsory medium of instruction’ for all children

enrolling for classes I to V10 in the State. The compulsory

medium of instruction is KANNADA or in the alternative, the

‘mother tongue’ of the child. The Court below struck down

this provision as offending multiple guarantees of our

Constitution – Articles 19(1)(g), 21, 26 and 30(1) of the

Constitution.

23. The language policy of the State is a breach of the promise

of formal freedom of education assured by the Constitution

of our country. It is an unwarranted intrusion into the

educational choice of a child and its parent.

24. The Respondent is led to wonder if any other right is worth

preserving at all if only this ‘forefront right to education’ is

surrendered to the Government. A Government that knows

better than the parents of a child must certainly be an ‘all

knowing Government’. An ‘all Knowing Government’ must

certainly ask for immense avenues for intrusion. An all

knowing Government must ask, ‘what should be the staple

food for its citizens’, ‘what shall be the personal habit or

custom of its citizens’, ‘what nature of relationships shall

10 The definition of primary education, at the time of passing of the said GO on 29-Apr-1994 has been later modified – it was standards I to IV earlier; then modified to standards I to V.

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exist between its citizens’, ‘whether a citizen shall or shall

not enter into a particular relationship with another person

in areas of marriage, fraternity, business, profession’ and

finally, ‘what, if any, rights shall vest with its citizens’. The

Constitution of India is wholly incompatible with an ‘all

Knowing Government’. And an ‘all Knowing Government’

may never need a court of law to tell it where it errs. It is

therefore, humbly submitted, that the ‘language policy’ of

the State is wholly incompatible with the Constitution of our

country or for that matter, with the Constitution of any

democratic nation in the world.

25. The State of Karnataka has enormous linguistic diversity

and people of the State speak more than a hundred

different languages in their homes. The State provides for ‘8

languages only11 in its ‘language policy’. The significance of

these 8 languages is that ‘the State expects that the mother

tongue of its residents is one of these 8 languages and no

other. Such an expectation is without any basis in fact.

People of the State of Karnataka speak languages outside of

these ‘8 languages’ and are therefore, severely affected by

the language policy of the State. The 1961 Census

recognised 1652 spoken languages in India.

REPLY TO QUESTION OF LAW:

26. In 2.1, the State says – ‘that was the very question raised by

the petitioners therein and rejected by this Hon’ble Court?’

The State, in effect, is raising a ‘question of fact’. The Court

below answered this question in the negative. The Court

below said that ‘the issue of whether the State could

mandate mother tongue as a compulsory medium of

11 KANNADA, TAMIL, TELUGU, MALAYALAM, MARATHI, HINDI, URDU and ENGLISH

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instruction never arose before this Hon’ble Court in the

English Medium Student Parent Association v. State of

Karnataka [AIR 1994 SC 1702 : 1994 (1) SCC 550 ]. In

saying so, the Court below has found the ‘fact’ against the

State. The State fails to offer any basis to say that the

finding of the Court below is in error. Accordingly, the State

is not entitled to say that ‘the Court below grossly erred in

not following the decision of this Hon’ble Court in English

Medium Student’. Therefore, the ‘question of law - 2.1 is

without a foundation in fact.

27. In 2.2, the State says – ‘whether the State as a matter of its

education policy has the power to prescribe that the

primary education from 1st year up to 4th year shall be in the

mother tongue of the children concerned’. A law cannot be

characterized as a ‘policy’ that should be immune from

‘judicial review’ if it plainly invades one or more guaranteed

fundamental rights. If it does invade a fundamental right,

then it ceases to be ‘good law’. The question of law framed

by the State ignores the fact that the so called policy was

struck down by the Court because it offends several

fundamental rights. In view of Article 13 of our Constitution,

it matters not what nomenclature a State gives to its law12.

It may call it a ‘policy’. Yet, a Court of law may strike down

the same should it offend one or more fundamental rights

guaranteed under Part III of the Constitution. Therefore,

question 2.2 presented by the State evades the decision of

the Court below and seeks to ask a purely ‘academic

question’.

12 Article 13(3)(a): 13. Laws inconsistent with or in derogation of the fundamental rights.—(3) In this article, unless the context otherwise requires,—(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

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28. In 2.3, the State assumes that the policy decision taken by

it is in larger National interest. The State fails to note that,

barring Karnataka, every other State in India freely allows

English medium instruction for children in standards I to V.

In fact, English medium instruction is today the preferred

choice of parents across the country. So, rather than

making a law to safeguard national interest, the State of

Karnataka has made a law that drastically departs from the

present and continuing trend in national education. A law

that contradicts the national trend cannot be said to be in

‘national interest’ at all. As such, question 2.3 assumes

facts not in existence and is therefore, improperly

presented to this Hon’ble Court.

29. In 2.4, the State asks the same question it presented to the

Court below – ‘whether Article 350-A supports its language

policy’. The Court below said ‘No’. The Court below offered

cogent reasons for saying so. The State has not

contradicted any of those reasons on appeal. So, without a

proper effort at finding fault with those reasons, it is not

entitled to raise the said question as it does not find fault

with the reasons assigned by the Court below.

30. In 2.5, the State varies its question presented in 2.4. As with

2.4, it must be held to be disentitled to raise question 2.5.

31. In 2.6, the State says – ‘Whether the Hon’ble High Court

grossly erred in holding that English alone is the treasure of

modern knowledge…’.Observation by the Court below with

respect to the merit of English language is not the sole or

even the predominant basis for striking down the language

policy of the State. Accordingly, question 2.6, even when

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answered by this Hon’ble Court, serves no appellate goals

of the State. Therefore, question 2.6 may kindly be

disregarded by this Hon’ble Court.

32. In 2.7, the State claims that there would be chaos in

education and that the education system of the country

would be destroyed if its ‘language policy’ is not allowed to

operate. The State fails to note that it is the sole State in

the country today to curtail English medium instruction in

schools and it is therefore, not entitled to claim that there is

chaos and destruction outside Karnataka. As a matter of

fact, there is neither chaos nor destruction outside

Karnataka where children and their parents freely exercise

their choice of medium of instruction. Therefore, question

2.7 assumes facts not in existence and is a desperate

attempt to engage this Hon’ble Court on issues that do not

exist in reality.

33. In 2.8, the State seeks answers to the true scope of Articles

19(1)(g) and 29 on the premise that its language policy is in

national interest. The State has failed to show, even

remotely, that its language policy is in national interest.

Accordingly, the State seeks answers to sheer academic

questions.

34. In 2.9, the State asks ‘whether the Court below was justified

in holding that Government and Non-Government schools

should be properly distinguished for the purpose of the

language policy’. The State fails to show, how it would

benefit if it were shown that such a classification was not

valid. The Court below struck down the language policy with

respect to private unaided schools. By specifying that its

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Order shall not apply to Government schools, the Court has

specifically recognised that Government schools are a class

apart. The State fails to offer any justification for entering

into this question. If only the State were to prevail upon this

issue and fail in every other, it would have simply

established that the Court below ought to have also struck

down the language policy with respect to Government

schools. The State is expected to be pleased with the fact

that the Court below allowed it to keep the language policy

with respect to Government schools. Accordingly, issue 2.9

does not promote any appellate purposes of the

State/petitioner.

35. Issue No.2.10, as much as issue 2.9, fails to promote any

appellate purposes of the State/petitioner.

REPLY TO THE GROUNDS

36. Paras 5.1, 5.6, 5.10, 5.11, 5.12, 5.13, 5.22, 5.24,

5.25, 5.38, 5.58, 5.59 - Of the 68 paragraphs stating the

Grounds in support of the petition, 12 paragraphs say one

and the same thing in one form or the other13. Essentially,

the argument is that the decision of the Court below is

contrary to that rendered by this Hon’ble Court in the case

13 5.1. The Hon’ble High Court grossly erred in not following the decision of this Hon’ble Court in English Medium Students Parents Association v. State of Karnataka (AIR 1994 SC 1702 : 1994 (1) SCC 550)…5.6….which runs counter to the law laid down by this Hon’ble Court in 1994 (1) SCC 5505.10…which has set at naught the uniform policy approved by this Hon’ble Court in the case reported in 1994 (1) SCC 5505.11. The High Court wholly erred in not noticing…1994 (1) SCC 5505.12. …therefore the judgment of this Hon’ble Court being on all fours…binding on the High Court…5.13. The High Court wholly erred in disregarding the view of this Hon’ble Court…5.22…The High Court erred…reported in 1994 (1) SCC 5505.24. The High Court wholly erred…judgment of this Hon’ble Court5.25. …was not the subject matter of the aforementioned judgment of this Hon’ble Court…5.38. …notwithstanding the judgment of this Hon’ble Court…5.58….It is also contrary to the decisions of …this Hon’ble Court.5.59….in the teeth of the judgment of this Hon’ble Court in 1994 (1) SCC 550

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of English Medium Students Parents Association v. State of

Karnataka (AIR 1994 SC 1702 : 1994 (1) SCC 550).

37. In fact, the principal argument14 of the State before the

court below said as much : that the High Court was bound

to enter a Judgment for the State in terms of the decision of

this Court in English Medium Students Parents Association

v. State of Karnataka (supra) (‘English Medium Parents’ for

short).

38. After a comprehensive analysis of the arguments rendered

by both sides, the Court below asked:

75. In this background, the question for consideration

is whether in the earlier proceedings referred to above

14 23…Even this Government Order of the year 1989, prescribing mother tongue as the medium of instruction for standards 1 to 4 and prescribing Kannada as a compulsory subject from 5th standard onwards in the case of those who have not studied Kannada from standards 1 to 4 was challenged by filing a writ petition before the Supreme Court under Article 32 of the Constitution of India in W.P. No. 536/1991. The said writ petition as well as the appeals filed by the State challenging the Full Bench judgment of this Court were heard by the Supreme Court and a common judgment was rendered in the case of English Medium Students Parents Association v. State of Karnataka and Ors. It is respectfully submitted that all the contentions now urged in the present writ petitions are liable to be negatived in view of the aforesaid Supreme Court judgment which is binding on all, as the Law of the land.

24. It is contended, that the Supreme Court in the aforesaid decision fully upheld the majority view of the Full Bench of this Court and dismissed the appeals preferred by the State. In effect, the Supreme Court held, that mother tongue should be the medium of instruction from standards 1 to 4. It pointed out that all the experts are unanimous in their opinion that children should begin their schooling through the medium of mother tongue and that there is great reason and logic behind this. When the tender minds of the children are subjected to alien medium, the learning process becomes unnatural. It inflicts cruel strain on the children, besides rendering educational process artificial and torturous.

26…. As pointed out by the Supreme Court in the aforesaid case, the question relating to medium of instruction is a matter of policy and the State Government is entitled to formulate such policy as it considers beneficial to the students. The Supreme Court has pointed out, that the Courts have no power or jurisdiction to entertain with such formulation of policies and the same should be left to the discretion of the concerned State Governments. Therefore, it was contended, the present writ petition filed challenging the Government Policy was not maintainable. The present Government Order is in substance the same as the Government Order dated 19.6.1989. Government Order having been upheld by the Supreme Court, challenge to the present Government Order is unsustainable….

30. Per contra, Sri. B.V. Acharya, learned Sr. Counsel appearing for the State of Karnataka contended, that the question raised in this writ petition is covered by the judgment of the Supreme Court in English Medium Students Parents Association (Supra)

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the validity of mother tongue being the medium of

instructions, was raised, whether it was contested and

whether a decision was rendered, rendering the writ

petitions not maintainable either on the ground of res

judicata or on the principle of binding precedent.

39. The Court below extensively consulted the history of

‘English Medium Parents’ and after a thorough study of

several judgments of this Hon’ble Court, said:

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 Article 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(1) 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

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language from I to IV Standard, as is clear from

Clause-I of the Government Order. Therefore, the ratio

decedendi, 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.

40. The Court below extensively addressed the principal

argument of the State in a very comprehensive and

scholarly approach. Paragraphs 76 to 90 of the Judgment

address nothing else but this very argument. The State

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cannot and does not find any fault with the reasoning

assigned by the Court below in rejecting its argument. As

such, the State should be considered to have failed to

discharge its due burden of disclosing the error committed

by the Court below. The State has merely repeated the very

arguments that did not find favour with the Court below and

it has preferred here, a ‘Review’ of the decision by the Court

below. An appeal must always be supported by a

‘Statement of errors’. Accordingly, the Respondent prays

that the State’s appeal be dismissed for a failure to state an

error, much less an appealable error.

41. In fact, the Court below makes this finding of fact and the

State has made no effort to dispute the same on appeal.

The Court below said:

78. The present Government Order dated 29-41994 is

neither a replica nor similar as the Government Order

dated 19-6-1989, which was the subject matter before

the Supreme Court. If the State was satisfied with the

policy as contained in the Government Order dated

19-6-1989, when it is already upheld by the Apex

Court, there was no necessity to have passed the

impugned order dated 29-4-1994. It would have been

superfluous. Though the relevant portion of the

Government dated 19-6-1989, as extracted above, is

retained with little elaboration, the petitioners are not

aggrieved by the same. Though initially they

challenged the said portion of the order as contained

in Clause (1) they have filed a memo giving up the

said challenge. They are primarily aggrieved by the

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other clauses such as Clause (2) (3) (6) and (8), which

are extracted as hereunder:

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.

It cannot be disputed these clauses were

conspicuously missing in the Government order dated

19-6-1989. They are introduced for the first time in

Government Order dated 29-4-1994. The validity of

these clauses were not the subject matter of earlier

proceedings either before this Court or the 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

20

this Court. Therefore, the aforesaid decisions do not

conclude the matter in issue in this writ petition.

42. Therefore, the State has failed to dispute the finding of fact

recorded by the Court below and its entire claim that the

‘decision of the Court below is contrary to the decision of

this Court in English Medium Parents’ is belied by its own

failure to dispute the above finding of fact by the Court

below.

43. In fact, the arguments of the State of Karnataka before the

Court below and before this Court are wholly similar to that

of its neighbor, the State of Tamil Nadu which sought to

justify a similar law impugned before the High Court of

Madras some time ago. [Tamil Nadu Tamil And English

Schools Association Vs. State of Tamil Nadu 2000 (2) CTC

344)]. In this case before the Madras High Court, the State

of Tamil Nadu vehemently contended that, in view of the

ruling of this Hon’ble Court in the case of English Medium

Parents, a judgment should be entered for the State and its

Order imposing ‘Tamil’ as the compulsory ‘medium of

instruction’ for the primary standards should be upheld.

44. A Full Bench of the Madras High Court took the extreme

step of directing its Registry to obtain copies of the petitions

lodged before this Court in English Medium Parents case. On

perusal, it held on the same terms as the Court below – the

issue of a ‘medium of instruction’, much less an ‘exclusive

medium of instruction’ was nowhere litigated in the case of

English Medium Parents case. The Madras High Court said:

“The committee in its recommendations relied on a

ruling of the Apex Court reported in English Medium

21

Students Parents' Association v.. State of Karnataka

(ibid). Even though the said ruling would not apply and

help the State to substantiate its case, as put forward

before the Court, for the purpose of completeness let

us consider that ruling as well”.

“Secondly we directed the Registry to get a copy of

the Writ Petition filed in WP No.536 of 1991 (in that

case before the Apex Court). The Registry placed

before us a copy of the same received by it from the

Supreme Court. We perused the same very carefully

and we are completely satisfied that the writ petitioner

did not raise any ground/point touching the medium of

instruction. Rightly so since as mentioned by the

impugned G.O. no institution was directed to introduce

the medium of instruction in mother tongue and

nobody was directed to study the subjects in the

mother tongue. This is further clear from the fact that

if a person was aggrieved even by asking him to study

Kannada language, he would have been more

aggrieved, if he was asked to study in Kannada

Medium and certainly that would have been the very

first and main ground in the Writ Petition”.

45. Accordingly, the claim of the State in paras 5.1, 5.6, 5.10,

5.11, 5.12, 5.13, 5.22, 5.24, 5.25, 5.38, 5.58, 5.59 that

the decision of the Court below is inconsistent with English

Medium Parents case is without merit.

STATE OSCILLATES BETWEEN TWO ARGUMENTS - ENGLISH

MEDIUM PARENTS CASE IS RATIO DECIDENDI AND ENGLISH

MEDIUN PARENTS IS OBITER.

22

46. In fact, the State has demonstrated no compulsion to state

facts accurately either before this Hon’ble Court or before

the Court below. In Grounds taken in support of its appeal,

the State says in para 5.1:

‘The Hon’ble High Court grossly erred in not following

the decision of this Hon’ble Court in English Medium

Students Parents Association v. State of Karnataka AIR

1994 SC 1702 : 1994 (1) SCC 550, in which this

Hon’ble Court had upheld the Government Order

prescribing that primary education shall be in mother

tongue … when that was the very question raised by

the petitioners therein and rejected by this Hon’ble

Court…’

47. However, in para 5.27, the State changes its stand and says

that the decision of this Court in English Medium Parents

was binding on the High Court as ‘obiter dicta’ of the

Supreme Court. The State says:

‘…whereas it is settled law that obiter dicta of the

Supreme Court is binding on the High Court,

particularly when the decision of this Hon’ble Court

clearly contributed ratio decidendi’

48. As may be seen from the above, before the Court below, the

State vehemently contended that the English Medium

Parents case had conclusively settled the issue before the

Court. The Court below did not agree. The State now offers

two contradicting arguments on appeal –

i. ‘questions were raised in English Medium Parents

and settled therein’ and

23

ii. ‘High Court was bound by Obiter dicta of the

Supreme Court’.

49. Certainly, the Respondent expects the State to not take

mutually contradicting postures before this Court. Either,

‘English Medium Parents’ raised and settled the issues or

‘English Medium Parents’ was obiter. The Court below has

conclusively established that ‘English Medium Parents’ did

not involve the relevant issues.

50. Instead of refuting the finding of the Court below, the State

oscillates here between two views – ‘English Medium

Parents’ was ‘binding’ or that it was ‘obiter’.

51. If a party before the High Court asserts that the ‘very issues

were agitated in and settled by a particular decision of the

apex court’ and yet loses at the High Court, it is forbidden

to assert on appeal that ‘the Court below was bound by

obiter dicta of the judgment of the apex court”.

52. In saying that English Medium Parents settled the leading

issues, the State is essentially stating that the Court below

erred in its conclusion. The State fails to recognise that the

Court below did not casually hold that the issues did not

arise for consideration in English Medium Parents. It

consulted the complete history behind that case in order to

so hold. Another Court, Madras High Court reached the

same conclusion by perusing the very copies of the petition

lodged before this Hon’ble Court in English Medium Parents.

As such, the State fails to note that its principal argument

before this Hon’ble Court is starved of any factual

foundation. The Respondent has further obtained copies of

24

the petition lodged before this Court in ‘English Medium

Parents’ and craves the leave of this Hon’ble Court to

produce the same to establish that ‘the issue of whether the

State could prescribe an educational medium of instruction

did not arise at all in English Medium Parents.’

53. The Respondent submits that the State is not entitled to

submit in this appeal, any question of whether the ‘obiter

dicta’ of this Court is binding on the Court below.

Accordingly, the appeal of the State cannot rest on the

argument that ‘the reasoning assigned by the Court below

is contrary to English Medium Parents case’. Accordingly,

the principal ground15 taken by the State on appeal here

would be without a proper foundation.

54. Further, the State does not and cannot find fault with the

conclusion of the Court below that the obiter in English

Medium Parents would not bind it given the nature of the

issues involved. In coming to such a conclusion, the court

below consulted the judgments of this Hon’ble Court16. The

15 5.1. The Hon’ble High Court grossly erred in not following the decision of this Hon’ble Court in English Medium Students Parents Association v. State of Karnataka (AIR 1994 SC 1702 : 1994 (1) SCC 550)…

5.6….which runs counter to the law laid down by this Hon’ble Court in 1994 (1) SCC 5505.10…which has set at naught the uniform policy approved by this Hon’ble Court in the case reported in 1994 (1) SCC 5505.11. The High Court wholly erred in not noticing…1994 (1) SCC 5505.12. …therefore the judgment of this Hon’ble Court being on all fours…binding on the High Court…5.13. The High Court wholly erred in disregarding the view of this Hon’ble Court…5.22…The High Court erred…reported in 1994 (1) SCC 5505.24. The High Court wholly erred…judgment of this Hon’ble Court5.25. …was not the subject matter of the aforementioned judgment of this Hon’ble Court…5.38. …notwithstanding the judgment of this Hon’ble Court…5.58….It is contrary to the decisions of …this Hon’ble Court.5.59….in the teeth of the judgment of this Hon’ble Court in 1994 (1) SCC 55016 Municipal Corporation of Delhi v. Gurnam Kaur [ AIR 1989 SC 38 : (1989)1 SCC 101 ] –

“…The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority”.

25

State is not suggesting on this appeal that the reliance of

the court below upon such authorities was ‘in error’.

Accordingly, the State is not entitled to raise issues upon

appeal without an assessment of the error that the court

below is stated to have committed.

55. It is further submitted that the issue of whether a State may

impose an exclusive medium of instruction is no longer res

integra in view of the decision of a Constitution Bench of

this Court in State of Bombay v. Bombay Education

Society17 and in D.A.V.College v. State of Punjab18.

Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa v. N.C. Budharaj [AIR 2001 SC 626 : [2001] 1 SCR264-

“…A decision is an authority on the question that is raised and decided by the Court. It cannot be taken as an authority on a different question though in some cases the reason stated therein may have persuasive value”.

Director of Settlements, State of Andhra Pradesh v. M.R. Apparao [AIR 2002 SC 1598 : (2002) 4 SCC 638]–

“…The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision.”

Haryana State Financial Corporation v. M/s Jagadamba Oil Mills [AIR 2002 SC 834 : (2002) 3 SCC 496 ] –

“…Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statues.”

“…Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.”

Union of India v. Chajju Ram [AIR 2003 SC 2339 : (2003)5 SCC 568 ] – “…It is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a little difference in facts or additional facts may lead to a different conclusion.”

Islamic Academy of Education v. State of Karnataka [ AIR 2003 SC 3724 ]-“…A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety.”

Divisional Controller, Karnataka State Road Transportation Corporation V. Mahadeva Shetty [AIR 2003 SC 4172 : (2003)7 SCC 197 ] –

“…Precedents sub silentio and without argument are of no moment. Mere casual expression carry no weight at all. Nor every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement having the weight of authority.”

17 AIR 1954 SC 561 : 1955 (1) SCR 56818 AIR 1971 SC 1737 : 1971(2) SCC 269

26

56. In the Constitution Bench decision of this Court in D.A.V.

College v. State of Punjab, the petitioners were educational

minority institutions affiliated to the Punjab University.

These minority institutions were affected by a State

legislation that substituted the Punjab University with the

Guru Nanak University in respect of a specified class of

educational institutions in four districts within the State of

Punjab. The petitioners apprehended19 that the State

legislation could impose the Punjabi medium of instruction

and the Gurumukhi script upon them and that in view of

their minority status, such a possibility violated their

constitutional protection under Articles 29 and 30 of the

Constitution. This Court ruled that:

‘Neither the University nor the State can provide for

imparting education in a medium of instruction in a

language and script which stifles the language and

script of any Section of the citizens. Such a course will

trespass on the rights of those Sections of the citizens

which have a distinct language or script and which 19 “20. Sub-section (2) of the Act, it is submitted enacts a provision for making it imperative to study and conduct research on the life and teachings of Guru Nanak and their cultural and religious impact on Indian and World civilizations while Sub-section (3) contemplates the adopting of measures for the study of Punjabi language literature and culture which provisions according to the petitioners directly aim at strangulating the growth of Hindi while encouraging the growth of Punjabi. Their apprehension is that Punjabi with Gurmukhi script will be made the sole medium of instruction in the University and that all Colleges affiliated to this University may be forced to impart education through that medium.”

“21. The State of Punjab in its counter denied that the provisions of Sub-sections (2) and (3) of Section 4 seek to strangulate the development and growth of Hindi language. It is stated that there is nothing in these provisions which offends the religious susceptibilities of the Petitioners nor can the provision for the promotion of and research in Punjabi language, literature and culture in the State of Punjab, which has as its declared policy the adoption of Punjabi as the sole language of the Punjabi speaking area, be construed as offending the rights of the minorities.”

27

they have a right to conserve through educational

institutions of their own’.

57. Although the aforesaid case was presented by linguistic

minorities in the State of Punjab and their claim was largely

founded upon Articles 29 and 30 of the Constitution, the

finding of this Hon’ble Court was a composite finding upon

the educational rights of citizens, not just of the minorities.

58. In the case of Bombay Education Society v. State of Bombay

the State of Bombay issued a Regulation20 forbidding

primary and secondary schools from imparting English

medium of instruction to students unless ‘they belonged to

a section of citizens the language of which is English,

namely, Anglo-Indians and citizens of non-Asiatic descent’.

The State of Bombay had argued that the reference to

certain ‘races’ in its Regulation was to emphasise the fact

that the ‘mother tongue’ of those ‘races’ happens to be

‘English’. In fact, the petitioner educational institution

sought to impart ‘English medium instruction’ to students

whose mother tongue was not ‘English’ and so, approached

the High Court to seek annulment of the Regulation issued

by the State. The said Regulation is hardly distinguishable21

20 Drawn from the Judgment of the Court below, the Bombay High Court in Bombay Education Society v. State of Bombay (AIR 1954 Bom 468 : ILR 1954 Bom 1333)21 ‘…The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and they claim admission to Barnes High School in exercise of the fundamental right said to have been guaranteed to them by article 29(2) of the Constitution. The School has declined to admit either of them in view of the circular Order of the State of Bombay. The provisions of the circular order, issued by the State of Bombay on the 6th January, 1954, have already been summarised above. The operative portion of the order, set forth in clause 5 thereof, clearly forbids all Primary or Secondary Schools, where English is used as a medium of instruction, to admit to any class any pupil other than a pupil belonging to a section of citizens, the language of which is English namely Anglo-Indians and citizens of non-Asiatic descent…’

28

from that issued by the Government of Karnataka in the

instant matter – among other things, educational

institutions are forbidden from imparting ‘English medium of

instruction’ to children whose mother tongue is not

English22.

59. The appeal by the State of Bombay against the Order and

Judgment of the High Court of Bombay was dismissed by

this Hon’ble Court. This Hon’ble Court was pleased to

dismiss the appeal by ruling that:

‘20 …Whatever the object, the immediate ground and

direct cause for the denial is that the mother tongue of

the pupil is not English. Adapting the language of Lord

Thankerton, it may be said that the laudable object of

the impugned order does not obviate the prohibition of

article 29(2) because the effect of the Order involves

an infringement of this fundamental right, and that

effect is brought about by denying admission only on

the ground of language….In our opinion the impugned

Order offends against the fundamental right

guaranteed to all citizens by article 29(2).’

‘23. Where, however, a minority like the Anglo-Indian

Community, which is based, inter alia, on religion and

language, has the fundamental right to conserve its

language, script and culture under article 29(1) and

has the right to establish and administer educational

22 In the course of the judgment, the High Court [Bombay Education Society v. State of Bombay (AIR 1954 Bom 468 : ILR 1954 Bom 1333)] pointed that:

‘It is not that there is any compulsion upon a child to study through the medium of his mother tongue. The compulsion is something very different and very obvious. The compulsion is, learn. through any language, whether it is your mother tongue or not, but don't learn through the English language…’.

29

institutions 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 institutions

to the 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

contents. Such being the fundamental right, the police

powers 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 and cannot be

permitted to run counter to it.’

‘26. The result of the foregoing discussion is that these

appeals must be dismissed and we order accordingly.

The State must pay the costs of the respondents.’

‘27. Appeals dismissed.’

60. Although the operative part of the above Judgment confines

itself to Articles 29 and 30 of the Constitution, the

Respondent submits that the circular issued by the

Government of Bombay was rendered inoperative by the

Court below (the circular operated against every school, not

just against schools established or administered by

minorities). A dismissal of the appeal filed by the State

simply affirmed the Order of the Court below.

61. The State claims to draw inspiration from the teachings and

sayings of Mahatma Gandhi in regard to ‘mother tongue as

a medium of instruction’. But some of his teachings are

wholly taken out of context by a few people for their selfish

and private motives. Most tragically, Mahatma Gandhi did

not live to see the world change dramatically in the years

30

since India attained independence. Mahatma Gandhi was

well aware of the fact that even before his time, parents in

India were insisting upon English Medium of Instruction for

their children. Mahatma Gandhi could not have taken any

serious exception to a practice that was considered by most

people of his own time as a guaranteed avenue of

advancement. It is simply submitted that Mahatma Gandhi

led great mass movements and some of his statements

reflected the conditions of the masses then. It would be

utterly irrational to apply Mahatma Gandhi’s teachings to

the world that has dramatically changed since the days of

the Mahatma. For instance, Mahatma Gandhi spoke even

more passionately against industrialization and often

viewed ‘Rule of Law’ as an ‘instrument of oppression’.

Mahatma Gandhi even argued more passionately for

‘vegetarianism’ and for certain forms of ‘self mortification’.

More importantly, Mahatma Gandhi advocated that ‘debt is

a sin’. Unfortunately the State of Karnataka appears to have

overlooked Gandhi’s sermon on ‘debt free life’. The State

has recently (16-Jul-2009) announced that its debt now

exceeds Rs.65,000,00,00,0000 (Rupees Sixty Five Thousand

Crores Only). The Respondent humbly submits that the

State is not entitled to quote the Mahatma selectively. After

all, a party who defends his action in a Court of law solely

on the strength of the teaching of a saint must also prove

that he adheres to the saint’s sermon in critical areas of his

life.

62. It is humbly submitted that the parents of a child are always

to decide what instruction to give their child and what

school he or she should attend. This freedom is not lost

31

under our Constitution and the State of Karnataka can make

no provision to the contrary.

ARTICLE 350-A WOULD LOSE ITS COMPLETE CHARACTER

WHEN INTERPRETED IN A MANNER SUGGESTED BY THE

STATE

63. Article 350-A exists for the protection of Linguistic

Minorities. Article 350-A does not seek to protect Linguistic

Minorities against their own choices – but only against a

dominant language in that specific territory (in relation to

which the speakers of the given language assume a

minority status). Article 350A therefore affords a protection

to Linguistic minorities in the form of a mandate upon the

State to provide facilities for instruction in the minority’s

own tongue.

64. Linguistic minorities in the State of Karnataka have a

subsisting right to reject the State’s arrangement and to

instead prefer ‘English Medium Instruction’. The refusal of

the State to so liberate linguistic minorities in the State is a

subtle invasion of Article 350-Aitself. Hence, the language

policy, unless restrained, inhibit the true operation of Article

350-A.

65. The insistence of the State that English medium of

instruction cannot be suitable or appropriate for educational

institutions is not likely to aid the implementation of Article

350-A in any way. Article 350-A cannot be implemented by

any negative Act.

66. The fact that Article 350-A is not made to apply to every

child but is made to apply only to the children of linguistic

32

minorities simply ensures that linguistic minorities in a State

are not trampled under the weight of pressure to learn in

another language. Article 350-A operates largely as a

protection to linguistic minority groups.

67. When the State decides to not permit schools to impart

instruction in the English medium and when this reluctance

is simply because the State wants another language in

place of English, the State acts against the interest of a

parent.

68. The State seems to labour under a mistaken belief that

Article 350-A of the Constitution demands it to impose the

official language of the State as a medium of instruction.

Nothing could be farther from the truth.

69. Article 350-A speaks only of instruction in the mother

tongue and it is a mystery how the State came to interpret

it as instruction in the Official Language of the State.

Considering that the words ‘mother tongue’ and ‘official

language’ are not legally correlated at all, any such

interpretation placed upon Article 350-A is grossly

mischievous.

70. Further, the language policy of the State recognises in its

Schedule 1 and 2, no more than 11 distinct languages and

the State ought not to think that even if the concept of

‘mother tongue’ could be legally settled, the children in the

State of Karnataka of schoolable age have as their mother

tongue, one of these 11 languages only and no other.

33

71. Certainly, a few hundred distinct languages are spoken by

mothers of school going children in the State and given the

same trend across this country, the Constitution makers

never meant to impose a duty upon each State to ensure

that every school going child would secure primary

education in none but his mother tongue - an absolutely

impossible burden would have been created upon each

State and it is only reasonable that no provision of the

Constitution would have been incorporated to secure an

impossible burden upon the State.

72. Article 350-A is merely an enabler and not a taker of any

valid right vesting in a linguistic minority. Linguistic

minorities that prefer to seek English medium for their

children have a subsisting right to not be compelled by a

State in the name of Article 350-A.

73. Accordingly, paras 5.1, 5.4, 5.5, 5.15, 5.16, 5.53 advance an

improper interpretation of Article 350-A.

74. In para 5.47, the State suggests that when a Three-Judge

Bench of the High Court delivers a Judgment and remands

the same to a Two-Judge Bench for issue of ‘Orders’, the

Order issued by the Two-Judge Bench can never be

inconsistent with the judgment of the Three-Judge Bench

particularly when the majority in the Three-Judge Bench is

the quorum in the Two-Judge Bench. This suggestion is

wholly irrelevant to the issue before this Hon’ble Court and

any enquiry into the correctness of this suggestion serves

no appellate goals of the State howsoever.

34

75. In para 5.50, the State suggests that the Court below was in

error in assuming that the absence of a medium of

instruction clause in the Constitution meant that a State did

not possess the power to prescribe an exclusive medium of

instruction. The State fails to note that Court below did not

proceed to deliver its judgment on a plain assumption that

the absence of such a clause must be held against the

State.

76. In para 5.51 the State says that the Court below erred in

taking judicial note of the fact that demand for English

Medium is ever increasing in the State. The judgment of the

Court below is delivered in a context of facts and legal

principles. The State further submits that there is no

compulsion with respect to medium of instruction for the

middle Schools, High Schools and the College levels. This

absence of compulsion in later stages of education does not

justify an unwarranted intrusion during the early stage of

primary education.

77. In para 5.52, the State expresses displeasure at the fact

that English language has positively and creatively

influenced Kannada language. Such displeasure is irrelevant

to this proceeding.

78. In para 5.53, the State submits that the Court below

reached a wrong inference from the fact that the

Constituent Assembly merely debated upon ‘the issue of

mother tongue becoming a medium of instruction’ and did

not proceed to incorporate any such clause into the

Constitution. The Court below undertook a study of the

historical background behind the issue of mother tongue as

35

a medium of instruction and has reached its conclusion in a

manner fully consistent with the legal significance of

historical events.23

79. In para 5.55, the State suggests that it has power to

prescribe a medium of instruction simply because it grants

recognition to educational institutions and that educational

institution cannot exist without such recognition. This

suggestion was rejected by the Court below with reference

to well established judicial decisions of this Hon’ble Court.

80. In para 5.56, the State suggests that, in any contest

between the right of a child and the power of a State over

the ‘medium of instruction issue, the State has the power to

compel an exclusive medium of instruction and that a child

cannot insist that a medium of instructions of his choice be

administered to him. This suggestion is without any

substance whatsoever and the Court below was fully

justified in rejecting it.

81. In para 5.57, the State suggests that imposition of an

exclusive medium of instruction is a reasonable regulation.

The Court below did not agree. The impugned notification

fails to pass the judicial test of reasonableness.

82. In para 5,58, the State suggests that the general trend

around the world is such that primary education is

conducted in a child’s mother tongue. The Court below took

note of this trend and has suitably distinguished various

23 Resolution passed in the Provincial Education Ministers’ Conference of 1949 and further approved by the Central Advisory Board of Education and the Government of India.

Resolution published by the Government of India in its Gazette on 14th August 1948.

Constituent Assembly debates.

Recommendations of States Reorganisation Commission

36

countries on the basis of their history and legal regimes. As

shown elsewhere in this Statement of objections, the State

is not keen to ensure that children receive primary

education in mother tongue only. Accordingly its reference

to distant countries is of no legal significance.

83. In para 5.60, the State submits that several countries like

Russia, Japan and France do not speak English and yet are

technologically and socially advanced than English speaking

nations. It is submitted Russia or Japan or France were

never exposed to English language in a manner seen in

India and that comparison with countries that have no

history of English exposure, societal percolation or political

domination to the extent witnessed in India, is

inappropriate.

OBJECTIONS TO GRANT OF INTERIM RELIEF:

84. The State has no likelihood, much less a substantial

likelihood, of prevailing upon the merits of the case.

Accordingly an injunction is absolutely unwarranted on the

facts of this case. Public interest considerations fully

outweigh the narrow State concern for imposing a language

of its choice as the medium of instruction for unwilling

citizens of this country who reside in the State.

85. The State has not disclosed, even a remotely legitimate

basis, for denying a child and its parents, the choice of its

medium of instruction. An interim injunction would cause

irreparable harm to the Respondent’s Constitutional rights

and would promote no public interest whatsoever.

37

86. A party seeking a preliminary injunction must establish that

he is likely to succeed on the merits of the case and that he

is likely to suffer irreparable harm in the absence of

injunctive relief, that the balance of equity tips in his favor,

and that an injunction is in the public interest. The State

fails to meet any of the above burdens and is therefore

disentitled to seek a preliminary injunction in this case.

87. The respondent has endured this very litigation for the past

13 years and the prospect of further litigation in this matter

deprives the Respondent of a timely resolution of his

constitutional right to a medium of instruction of its choice.

88. In exercise of power to legislate upon ‘Education’ in terms

of Entry 25 of List 3 of Schedule 7 to the Constitution of

India, the State promulgated the Karnataka Education Act,

198324 with effect from 20-Jan-1995. The said statute will be

hereinafter referred to as ‘Act’ wherever the context admits.

89. Section 3025 of the Karnataka Education Act, 1983

mandates that every educational institution governed to

which the statute applies shall be registered. The impugned

language policy of the State prevented registration of

‘English Medium instruction’ in schools across the State.

24 ‘for the purpose of providing ‘better organisation, development, discipline and control of the educational institutions in the State’. - PREMABLE25 Section 30: EDUCATIONAL INSTITUTIONS TO BE REGISTERED- (1) Save as otherwise provided in this Act, every local authority institution and every private educational institution, established on or before the date of commencement of this Act or intended to be established thereafter shall notwithstanding anything contained in any other law for the time being in force be registered in accordance with this Act and the Rules made thereunder.

(2) No person or local authority shall establish or as the case may be, run or maintain an educational institution requiring registration under this Section, unless such institution is so registered.

38

90. Pursuant to the issue of the impugned Order of the Court

below on 02-Jul-2008, the educational institutions of the

Respondent have made preparations to secure modification

of their ‘Registration’ for the purpose of imparting English

Medium instruction for the academic year 2009-10.

91. The Rules made under the authority of the Karnataka

Education Act, 1983 prescribe that applications for

modification of Registration should be submitted before 31st

of October of the year preceding the commencement of the

academic year. Accordingly, the institutions of the

Respondent have lodged appropriate representation

seeking registration of English Medium instruction in their

institutions for the academic year 2009-10.

92. The State has not taken any specific steps to reject the

specific applications of the Respondent but has rejected

similar applications by other institutions by issuing an

endorsement in the month of February, 2009 that stated in

pertinent part that:

…At that point of time, the G.O ED.PGC.94 dated 29-

Apr-1994 was in force and according to it, the

requirement that medium of instruction shall be in

Kannada or the mother tongue of the child extended

to private unaided primary schools also. That

requirement has been held to not be applicable to

private unaided primary schools by a Full Bench of the

Hon’ble High Court of Karnataka on 02-Jul-2008. The

said Judgment has been questioned before the Hon’ble

Supreme Court by the Government of Karnataka in

S.L.P. Nos.18139-18163 of 2008. The Hon’ble Supreme

Court has accepted the said appeal for hearing. As this

39

matter is now pending before the Hon’ble Supreme

Court, your request cannot be considered now.

Therefore, only after the S.L.P. pending before the

Hon’ble Supreme Court is decided, your request will

be considered. A DD for Rs.5000 is returned hereby.

You are directed to receive back your Application from

the Block Education Officer concerned.

93. Aggrieved by the same, Karnataka Unaided Schools

Management’s Association, another Respondent before this

Hon’ble Court (of which this Respondent is a member),

approached26 the Hon’ble High Court of Karnataka by

stating before the Court that: (Writ Petition No.6394-95 of

2009 – Karnataka Unaided Schools Management’s

Association v. State of Karnataka And Ors. Date of Filing:

18-Mar-09. Date of Disposal: 06-Apr-09)

i. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below27.

26 PRAYER:

i. to issue a Writ of Prohibition or a Writ of any other nature or description restraining Respondents from enforcing the G.O. dated 29-Apr-1994 (Annexure G) in a manner inconsistent with the Order and Judgment dated 02-Jul-2008 of the Full Bench of this Court in Writ Petition 14363 of 1994 and connected petitions in respect of Petitioner 2 and member institutions of petitioner 1 and therefore, to quash the ‘Rejection Order’ dated 25-Feb-2009 issued by Respondent 3 (Annexure F ).

ii. to issue a Writ of Mandamus or a Writ of any other nature or description directing Respondent 3 to ‘Register’ forthwith ‘English Medium of Instruction’ in respect of ‘Sri Aurobindo Vidya Mandir’ established and administered by Petitioner 2, Rajajinagar Education Society.

27 Atma Ram Properties v. Federal Motors [2004 (10) SCALE 345 : (2005) 1 SCC 705

ORDER XX (MISCELLANEOUS), SUPREME COURT RULES, 1966. “1. The filing of an appeal shall not prevent execution of the decree or order appealed against but the Court may, subject to such terms and conditions as it may think fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under

40

ii. Respondent 3 has a duty to register the ‘English Medium Instruction’ in educational institutions of the Petitioners in terms of Section 30 of the Karnataka Education Act, 1983 and under rules and orders made thereunder and in terms of Notification No. ED 68 AAV 96, dated 30-06-1997. In refusing to so register, Respondent 3 has committed a breach of duty cast upon it. A Writ of Mandamus so lies to compel Respondent 3 to discharge such duty wrongfully denied to the Petitioners.

iii. The Respondents have no authority to disregard a binding Order and Judgment of the High Court and are conferred no privilege or immunity to enforce that part of a Government Order that has already been declared void28 and as of no legal effect by a Court of competent jurisdiction. The proceedings that resulted in the Full Bench Order were validly instituted and were brought before an appropriate Court of competent jurisdiction – the High Court. As such, the Respondents, by seeking to enforce a G.O. that has since been obliterated from the Statute Books are professing an authority that is not merely non-existent but is one which severely conflicts with the power29 conferred upon a High

appeal to the Court.”28 “Where a Statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend on it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be unconstitutional and which consequently has to be regarded as having never at any time been possessed of any legal force…The effect of the declaration that the Act is void should be notionally taken to be obliterated from the section for all intents and purposes”Commentary on the CONSTITUTION OF INDIA – Durga Das Basu. 8 th Edition. Pg.699. Vol.129 “Judicial power is the power of a Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision” Justice Samuel Miller, On the Constitution (New York, 1891) pg.314

“Judicial power is the power to entertain the suit, consider the merits and render a binding decision thereon”. General Investment Co. v. New York Central Railway

41

Court constituted under Article 214 of the Constitution.

iv. Respondent 3 is not a multipurpose agent of the Government of Karnataka but is a statutory office vested with definite and limited powers. Accordingly, for the proper and due performance of his duties, the DDPI, commensurate with his power, has a duty to act in accordance with the statutes and the law in force. It is impossible to comprehend any legal merit30 in the argument that – because a High Court judgment is appealed to the Hon’ble Supreme Court, the High Court judgment need not be enforced until it is approved by the Supreme Court. Accordingly, the conduct of the DDPI is based on an assumption that holds no legal flavour whatsoever.

v. Further the State has not merely appealed to the Hon’ble Supreme Court against the Full Bench Order. But has even sought ‘Interim Relief’ against the operation of the Full Bench Order. If only the State assumed, even erroneously, that mere appeal to the Hon’ble Supreme Court is enough to suspend the operation of the Full Bench Order, there was no special need to seek an ‘Interim Relief’ and to furnish ‘Grounds’ in support thereof. The fact that the State has sought a ‘Stay’ separately and specifically belies the view of its officers that the Full Bench Order need not be enforced for the moment. It is further submitted that during the hearing before the Hon’ble Supreme Court, the

Co. [Supreme Court of the United States - 271 U.S. 228]30 “The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be prepared to the statute, the intention of the people to the intention of their agents”. The Federalist. Nos.78 at pg.525

42

Counsel for the State did invite the attention of the Court to their application for stay. Despite the same, the Hon’ble Supreme Court merely directed formal ‘Notice’ to Respondents.

vi. The State has exceeded its authority in seeking to enforce the language policy of the State when the operation of the same has been removed by this Hon’ble Court. Having failed to secure an interim stay upon the Full Bench Order, Respondents have clearly disregarded the injunction subsisting upon their conduct. Respondents should therefore be restrained from enforcing the language policy in respect of the petitioners’ educational institutions. The Petitioners reasonably expect to succeed on issue of such restraint.

vii. The Petitioners have no adequate remedy other than to seek reversal of State action to preserve their constitutional guarantee of a right to a valid occupation. The refusal of the respondents to register ‘English Medium Instruction’ in the petitioners’ schools clearly violates the right of the Petitioners to engage in an occupation long considered to be inherently virtuous and utilitarian and perceived as for advancement of public good.

viii. Between 02-Jul-2008 and today, 09-Mar-2009, there has been no stay upon the Full Bench Order by any competent Court. Accordingly, the obligation of the DDPI to adhere to the ‘Rule of Law’ is fully frustrated as the law in force at all relevant times for the purpose of this petition has been that contained in the Full Bench Order. The DDPI has, by his conduct, violated the Full Bench Order with utter disregard to the consequences such conduct creates.

94. The Hon’ble High Court of Karnataka was pleased to allow

the said Writ Petition on the following terms on 06-Apr-09:

43

“Be that as it may, though the judgment of the Full

Bench is questioned before the Apex Court, no interim

Order is granted as on this day. Thus, the judgment of

the Full Bench continues to operate and consequently,

the respondents are bound by it. Therefore, the

rejection of the application filed by the petitioner

praying for registration to run English medium school

only on the ground that the matter is pending

adjudication before the Apex Court, cannot be

sustained. The classes will start from 1st of June 2009.

Thus there is urgency in the matter. In view of the

same, the respondents will have to consider the

application of the petitioner for registration on merits,

in accordance with law, and in the light of the

judgment of the Full Bench of this Court cited supra.

Accordingly, the following Order is made:”

“The impugned endorsement/Order vide Annexure F

dated 25-Feb-2009 passed by 3rd respondent stands

quashed. The application filed by petitioner No.2

praying permission for registration to run English

medium school shall be considered by the respondent

No.3 in accordance with law and on merits and in the

light of the judgment of the Full Bench (cited supra).

The petitioner shall file fresh application praying for

registration of the school within one week from today.

The respondent No.3 shall consider the application

within four weeks from the date of receipt of

application.”

95. The State took no steps whatsoever to comply with the said

Order of the learned Single Judge. However, the State took

44

no steps whatsoever to comply with the said Order even

though thousands of educational institutions across the

State filed fresh applications with the State on the basis of

the said Order dated 06-Apr-2009. As of today, the State

has failed to dispose even a single application filed pursuant

to the said Order dated 06-Apr-09 issued by the learned

Single Judge of the Karnataka High Court.

96. The State had an affirmative and positive duty31 to

communicate to educational institutions of the Respondent

on whether ‘English Medium Instruction’ is ‘registered’ and

if not, why it cannot be so ‘registered’. The State took no

steps whatsoever to suitably inform the Respondent.

97. After doing nothing for more than 50 days during the critical

April and May months of 2009, the State filed a Writ Appeal

before the Division Bench of the Hon’ble High Court against

the said Order dated 06-Apr-09 only on 22-May-09. (Writ

Appeal No.1682 of 2009 – State of Karnataka And Ors v.

Karnataka Unaided Schools Management’s Association And

Anr). The State made no efforts to seek hearing before the

Court until 08-Jul-09. Upon a preliminary hearing on 08-Jul-

09, a Division Bench of the High Court was pleased to

dismiss the same by observing that the State’s appeal was

without any merit whatsoever.

31 Section 31 (4) of the Karnataka Education Act, 1983: “…. the registering authority may register the institution if the conditions prescribed or specified for registration have been fulfilled within such period and issue a certificate in the prescribed form but shall refuse registration where there has been no such compliance. Every order of refusal shall disclose the grounds for such refusal and shall be in writing and shall be communicated to the concerned applicant.”

45

98. The State was fully aware of the fact that the said Order of

the learned Single Judge 06-Apr-09, given the wide media

attention it received in Karnataka, gave a legitimate

expectation to the Respondent that its application for

‘English Medium Instruction’ for the academic year 2009-10

would be immediately honoured.

99. Given that classes were to commence from 25-May-09, the

Respondent educational institutions have already made

enormous preparations for imparting English medium on the

strength of the Order dated 06-Apr-09, have completed

admissions for primary education in English medium for the

Academic year 2009-10 and more importantly, classes have

already commenced since 25-May-09.

100. The State has itself announced that more than 1100

applications received by it for registration of ‘English

Medium instruction’ in primary schools for the academic

year 2009-10 have not been attended to. Consequently,

given the Order of the learned Single Judge dated 06-Apr-09

and the subsequent conduct of the State, it must be held

that the State has waived its entitlement for interim relief

before this Hon’ble Court.

101. The Respondent humbly submits that any interim stay upon

the Full Bench Order of the Court below dated 02-Jul-08 will

necessarily inflict incalculable loss and harm upon more

than 650 children enrolled in English medium schools of the

Respondent. The emotional distress and damage upon

these children and their parents will necessarily push

primary education in the region of Shimoga into despair.

Not to mention, irreversible and irreparable damages upon

46

the Respondent and on the parents of children studying in

the Respondent’s institutions.

102. The administrative difficulty claimed by the State is wholly

without any basis and that registration of English Medium

schools in Karnataka is legally indistinguishable from

registration of Kannada Medium schools.

In view of the aforesaid facts and circumstances the petition

of the petitioner may kindly be dismissed and the

Application for Interim Stay may kindly be dismissed

forthwith.

DEPONENT

VERIFICATION

Verified at New Delhi on this the 9th day of July 2009 that

the contents of the above affidavit are true and correct to

the best of my personal belief, knowledge and information,

and no part of it is false and nothing has been concealed

therefrom. Further verified that, no information that has not

formed part of the record of the case in the Court below has

been cited herein except in respect of events occurring

subsequent to the filing of the above Special Leave Petition.

DEPONENT