SC impact: Goa forced to have English medium Govt primary schools?

GOANEWS DESK, PANAJI | 06 May 2014 20:04 IST

All the primary schools in the country, including the government-run primary schools, will have to give right to the student or parent to choose the medium of instruction, including English.

As this is a Supreme Court decision, experts say it automatically becomes a law and applies to the whole country.

The Supreme Court not only strikes down Karnataka government’s order to make compulsion of Kannada as a medium of instruction but also speaks about choosing the medium of instruction.

“Since this is a broader issue the Supreme Court is dealt with and not limited to the issue of Karnataka states, it automatically applies to the whole country. Under Article 141 of the Constitution, what Supreme Court decides becomes the law”, observes Adv Cleofato Almeida Coutinho, the constitutional expert.

The apex court states that, under article 21 and 21A of the Constitution, every child has a right to free and compulsory education up to the age of 14.

While exercising this right to free and compulsory education, the Supreme Court states that the child or the child’s parent has a right to freedom to choose the medium of instruction at primary level.

The Supreme Court, in its order, mainly dealt with five question, including Question (ii):

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

The concluding part of para 31 of the Supreme Court order, related to this question, states as follows:

“...we are of the view that the right to freedom of speech and expression under Article 19 (1) (a) of the Constitution includes the freedom of a child to be educated at the primary stage of school in a language of the choice of the child and the State cannot impose controls on such choice just because it thinks that it will be more beneficial for the child if he is taught in the primary stage of school in his mother tongue. We, therefore, hold that a child or on his behalf his parent or guardian, has a right to freedom of choice with regard to the medium of instruction in which he would like to be educated at the primary stage in school.”

The apex court has rejected the argument that the state has a right to impose restriction on the right to choose the medium of instruction.

This issue becomes pertinent since the Karnataka government had imposed a restriction that only Kannada would be the medium of instruction in ALL the primary schools, recognised by the state government.

It also becomes pertinent for Goa since our state government has decided that the government schools will not have English as the medium of instruction.

While arguing, the Karnataka government had taken protection under Article 19 (2), which allows the State to impose restrictions on the freedom to choose the medium of instruction.

But the learned judges of the Supreme Court point out that Article 19 (2) cannot be used to impose this restriction.

As per the observation in para 32, “the State will have no power under clause (2) of Article 19 to put reasonable restrictions on the right to freedom of speech and expression except in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

While allowing the parent to choose the medium of instruction of a child at primary level, the apex court has extended the interpretation of the “right to freedom of speech and expression.”

Quoting the SC order delivered by Justice P B Sawant, the apex court states: “In his opinion, P.B. Sawant, J. Observed that the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained.”

The whole court case is related to the Karnataka state government’s order issued in 1994, which made the 'medium of instruction' from standard I to IV in all the schools recognised by the State Government as either Kannada or mother tongue.

 

RELATED PART OF THE JUDGEMENT

The questions referred to the Constitution Bench:

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

27.  The High Court has held that the parent or a child has a right to choose medium of instruction in primary schools as part of the right to freedom of speech and expression under Article 19(1)(a) of the Constitution and the right to choose the medium of instruction is also implicit in the right to education under Articles 21 and 21A of the Constitution. We have to decide whether these conclusions of the High Court that the parent or a child has a right to choose the medium of instruction in primary schools as part of the right to freedom of speech and expression under Article 19(1)(a) of the Constitution and also has a right to choose the medium of instruction in primary schools under Articles 21 and 21A of the Constitution are correct.

28. Article 19 of the Constitution is titled “Right to Freedom” and it states that all citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f) x x x

(g) to practise any profession, or to carryon any occupation, trade or  business.

The word ‘freedom’ in Article 19 of the Constitution means absence of control by the State and Article 19(1) provides that the State will not impose controls on the citizen in the matters mentioned in sub-clauses (a),(b),(c),(d),(e) and (g) of Article 19(1) except those specified in clauses 2 to 6 of Articles 19 of the Constitution. In all matters specified in

clause (1) of Article 19, the citizen has therefore the liberty to choose, subject only to restrictions in clauses (2) to (6) of Article 19.

29. One of the reasons for giving this liberty to the citizens is contained in the famous essay ‘On Liberty’ by John Stuart Mill. He writes:

“Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.”

According to Mill, therefore, each individual must in certain matters be left alone to frame the plan of his life to suit his own character and to do as he likes without any impediment and even if he decides to act foolishly in such matters, society or on its behalf the State should not interfere with the choice of the individual. Harold J. Laski, who was not prepared to accept Mill’s attempts to define the limits of State interference, was also of the opinion that in some matters the individual must have the freedom of choice. To quote a passage from “A Grammar of Politics” by Harold J. Laski:

“My freedoms are avenues of choice through which I may, as I deem fit, construct for myself my own course of conduct. And the freedoms I must possess to enjoy a general liberty are those which, in their sum, will constitute the path through which my best self is capable of attainment. That is not to say it will be attained. It is to say only that I alone can make that best self, and that without those freedoms I have not the means of manufacture at my disposal.”

Freedom or choice in the matter of speech and expression is absolutely necessary for an individual to develop his personality in his own way and this is one reason, if not the only reason, why under Article 19(1)(a) of the Constitution every citizen has been guaranteed the right to freedom of speech and expression.

30. This Court has from time to time expanded the scope of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution by consistently adopting a very liberal interpretation. In Romesh Thappar v. The State of Madras [AIR 1950 SC 124], this Court held that freedom of speech and expression includes freedom of propagation of ideas which is ensured by freedom of circulation and in Sakal Papers (P) Ltd. v. Union of India [AIR 1962 SC 305], this Court held that freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views. In Bennett Coleman & Co. v. Union of India [(1972)2 SCC 788], this Court also held that the freedom of press means right of citizens to speak, publish and express their views as well as right of people to read and in Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana [(1988) 3 SCC 410], this Court has further held that freedom of speech and expression includes the right of citizens to exhibit films on Doordarshan.

31. This Court also went into the question whether receiving information or education by a citizen was part of his right to freedom of speech and expression in Secretary, Ministry of Information & Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Ors. (supra) and held that the right to freedom of speech and expression in Article 19(1(a) of the Constitution will not only include the right to impart information but also the right to receive information. In his opinion, P.B. Sawant, J. Observed that the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. In line with the earlier decisions of this Court, we are of the view that the right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the freedom of a child to be educated at the primary stage of school in a language of the choice of the child and the State cannot impose controls on such choice just because it thinks that it will be more beneficial for the child if he is taught in the primary stage of school in his mother tongue. We, therefore, hold that a child or on his behalf his parent or guardian, has a right to freedom of choice with regard to the medium of instruction in which he would like to be educated at the primary stage in school. We cannot accept the submission of the learned Advocate General that the right to freedom of speech and expression in Article 19(1)(a) of the Constitution does not include the right of a child or on his behalf his parent or guardian, to choose the medium of instruction at the stage of primary school.

32. We cannot also accept the submission of Mr. Bhat that if the right to freedom of speech and expressionin Article 19(1)(a) of the Constitution  is held to include the right to choose the medium of instruction at the stage of primary school, then the State will have no power under clause (2) of Article 19 to put reasonable restrictions on the right to freedom of

speech and expression except in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. In our view, the Constitution makers did not intend to empower the State to impose reasonable restrictions on the valuable right to freedom of speech and expression of a citizen except for the purposes mentioned in clause (2) of Article 19 of the Constitution because they thought that imposing other restrictions on the freedom of speech and expression will be harmful to the development of the personality of the individual citizen and will not be in the larger interest of the nation. In the words of Pantanjali Shastri speaking for the majority of the judges in Romesh Thappar v. The State of Madras (supra):

“Thus, very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression and this was doubtless due tothe realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected with Madison who was ‘the leading spirit in the preparation of the First Amendment of the Federal Constitution’, that “it is better leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits” (Quoted in Near v. Minnesotta, 283 U.S. 607 at 717- 8).”

Therefore, once we come to the conclusion that the freedom of speech and expression will include the right of a child to be educated in the medium of instruction of his choice, the only permissible limits of this right will be those covered under clause (2) of Article 19 of the Constitution and we cannot exclude such right of a child from the right to freedom of speech and expression only for the reason that the State will have no power to impose reasonable restrictions on this right of the child for purposes other than those mentioned in Article 19(2) of the Constitution.

33. We may now consider whether the view taken by the High Court in the impugned judgment that the right to choose a medium of instruction is implicit in the right to education under Articles 21 and 21A of the Constitution is correct. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. In Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra), a Constitution Bench of this Court has held that under Article 21 of the Constitution every child/citizen of this country has a right to free education until he completes the age of 14 years.

Article 21A of the Constitution provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Under Articles 21 and 21A of the Constitution, therefore, a child has a fundamental right to claim from the State free education upto the age of 14 years. The language of Article 21A of the Constitution further makes it clear that such free education which a child can claim from the State will be in a manner as the State may, by law, determine.

If, therefore, the State determines by law that in schools where free education is provided under Article 21A of the Constitution, the medium of instruction would be in the mother tongue or in any language, the child cannot claim as of right under Article 21 or Article 21A of the Constitution that he has a right to choose the medium of instruction in which the education should be imparted to him by the State. The High Court, in our considered opinion, was not right in coming to the conclusion that the right to choose a medium of instruction is implicit in the right to education under Articles 21 and 21A of the Constitution.

Our answer to Question No.(ii), therefore, is that a child, and on his behalf his parent

or guardian, has the right to choose the medium of instruction at the primary school stage under Article 19(1)(a) and not under Article 21 or Article 21A of the Constitution.

 FULL TEXT OF THE SUPREME COURT JUDGEMENT


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MoI Must Be In English And Only 1 Subject Konkani In Devnagri Or Roman Script.

- Jose Rod, Goa | 07 th May 2014 13:25

 

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