Académique Documents
Professionnel Documents
Culture Documents
(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
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
4. I have read over and understood the contents of the Dates and
PRELIMINARY SUBMISSIONS
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
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
11. In view of the fact that the State claims that its language policy
13. As seen from the above, the other half of its policy says that
15. Yet, the language policy precisely says – ‘you may or may not
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’.
8
19. The State has failed to state what, if any, ‘errors’ have been
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.
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
26. In 2.1, the State says – ‘that was the very question raised by the
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
28. In 2.3, the State assumes that the policy decision taken by it is
29. In 2.4, the State asks the same question it presented to the
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
32. In 2.7, the State claims that there would be chaos in education
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
36. Paras 5.1, 5.6, 5.10, 5.11, 5.12, 5.13, 5.22, 5.24, 5.25, 5.38,
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).
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:
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
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.
47. However, in para 5.27, the State changes its stand and says that
48. As may be seen from the above, before the Court below, the
49. Certainly, the Respondent expects the State to not take mutually
50. Instead of refuting the finding of the Court below, the State
51. If a party before the High Court asserts that the ‘very issues
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
54. Further, the State does not and cannot find fault with the
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.
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
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
61. The State claims to draw inspiration from the teachings and
66. The fact that Article 350-A is not made to apply to every child
68. The State seems to labour under a mistaken belief that Article
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.
72. Article 350-A is merely an enabler and not a taker of any valid
74. In para 5.47, the State suggests that when a Three-Judge Bench
75. In para 5.50, the State suggests that the Court below was in
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
78. In para 5.53, the State submits that the Court below reached a
79. In para 5.55, the State suggests that it has power to prescribe a
80. In para 5.56, the State suggests that, in any contest between the
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
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.
85. The State has not disclosed, even a remotely legitimate basis, for
87. The respondent has endured this very litigation for the past 13
24
‘for the purpose of providing ‘better organisation, development,
discipline and control of the educational institutions in the State’.
- PREMABLE
37
90. Pursuant to the issue of the impugned Order of the Court below
91. The Rules made under the authority of the Karnataka Education
92. The State has not taken any specific steps to reject the specific
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
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
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
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
94. The Hon’ble High Court of Karnataka was pleased to allow the
95. The State took no steps whatsoever to comply with the said
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
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.
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