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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. Respondents


Recognised Unaided English Medium)
Primary And Secondary Schools And
Ors. ETC

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 to conduct this

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)
2

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 medical

4
SRI VIVEKANANDA MEMORIAL SCHOOL, Vidyanagar
5
SRI VIVEKANANDA MEMORIAL SCHOOL, Gopala
6
SRI VEVEKANANDA MEMORIAL SCHOOL, Ram Manohar Lohia Nagar
Section 2(18) of the Karnataka Education Act, 1983 defines
7

‘Grant’ as
“means any sum of money paid as aid out of the State funds to
any educational institution”.
3

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 112
4

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 THE MEDIUM OF


INSTRUCTION SHOULD VS. INSTRUCTION SHOULD
BE MOTHER TONGUE 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
9
“…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 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.
5

harmed’ when it is instructed in a language 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 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.
6

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;

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;
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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.

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’.
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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, 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
9

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 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

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.
10

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 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.

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

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’.

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.
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;
12

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 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
13

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 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


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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 of English Medium Students
Parents Association v. State of Karnataka (AIR 1994 SC 1702 :
1994 (1) SCC 550).

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 550
5.10…which has set at naught the uniform policy approved by this Hon’ble
Court in the case reported in 1994 (1) SCC 550
5.11. The High Court wholly erred in not noticing…1994 (1) SCC 550
5.12. …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 550
5.24. The High Court wholly erred…judgment of this Hon’ble Court
5.25. …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
15

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 the
validity of mother tongue being the medium of
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)
16

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 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
17

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 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
18

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 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.
19

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 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.
20

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 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.
21

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.

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
22

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

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’.
23

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 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
24

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 State is not suggesting on
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 550
5.10…which has set at naught the uniform policy approved by this Hon’ble
Court in the case reported in 1994 (1) SCC 550
5.11. The High Court wholly erred in not noticing…1994 (1) SCC 550
5.12. …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 550
5.24. The High Court wholly erred…judgment of this Hon’ble Court
5.25. …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 550
16
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”.
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
25

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.

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

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 568
18
AIR 1971 SC 1737 : 1971(2) SCC 269
26

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 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.

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

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 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.

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…’
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…’.
28

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
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.’
29

‘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 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
30

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 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.
31

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 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
32

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.

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


33

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.

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.
34

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 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

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
35

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 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.
36

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.

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.

24
‘for the purpose of providing ‘better organisation, development,
discipline and control of the educational institutions in the State’.
- PREMABLE
37

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.

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

25
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

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 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

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 ).
39

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.

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

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
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
40

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 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

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.
8th Edition. Pg.699. Vol.1
29
“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 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
41

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 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
42

‘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:

“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:”
43

“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 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.
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.”
44

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.

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.
45

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 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.
46

DEPONENT

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