Language Conflict Writ Petition

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

PRESENTATION FORM

Writ Petition No. /2009 (EDN. REG-P)

Serial No……………..

Advocate Sri K.V.DHANANJAY

No.296, Kamakshipalya

Magadi Main Road

Bangalore 560 079

Roll.No.KAR/659/02

BANGALORE District

Between

Karnataka Unaided Schools Management’s Assn. And Anr.

And

State of Karnataka And Ors.

Sl.No. Description of Paper Presented Court Fee Affixed On the Paper

1 On the Memo of Writ Petition

On the Memo of Appeal

On Vakalath

On Certified Copies

On I.A.No…………for

On Process Fee

On Copy Application

………………..

………………...

…………………

200

2

3

4

5

6

7

8

9

10

Total 200

Number of Copies Furnished Other Side served

Presented by

Advocate for petitioner

Appellant / Respondent

Received Paper with Court Fees as above

Advocate’s Clerk

Date: 09-Mar-2009. Bangalore Receiving Clerk


ORIGINAL JURISDICTION

WRIT PETITION NO. /2009 (EDN. REG-P)

Between:

Karnataka Unaided Schools

Management’s Association And Anr

Petitioners

AND

State of Karnataka And Ors. Respondents

INDEX

Sl.No. Particulars Pages Nos.

1. Synopsis And List of Dates 1-8

2. Memorandum of Writ Petition

Statement of Facts 09-38

Grounds 38-41

Prayer 42

9-43

3. Verifying Affidavit of Petitioner 1. 44

4 Annexure A Certificate of Registration of Petitioner 1 Society dated 08-Mar-1984

45

5 Annexure BCertificate of Registration of Petitioner 2 Society dated 26-Jul-1967

46-47

6 Annexure CCertificate of Registration dated 23-May-2004 of ‘Sri Aurobindu Vidya Mandir’ u/s.31 of Karnataka

48-52

Education Act, 1983, established and administered by Petitioner 2

7 Annexure DLetters dated 22-Oct-2008 addressed by Petitioner 2 to Respondent 3 in regard to change of ‘Medium of Instruction’ from ‘Kannada’ to ‘English’

53-54

8 Annexure EApplication Form in Form I dated 23-Oct-2008 seeking ‘Registration’ of change of ‘Medium of Instruction’ from Kannada to English – addressed by Petitioner 2 to Respondent 3.

55-59

9 Annexure FRejection Order dated 25-Feb-2009 issued by Respondent 3 in respect of request made by Petitioner 2 for Change of ‘Medium of Instruction’ from Kannada to English.

60

10 English Translation of Annexure F 61-62

11 Annexure GLanguage Policy of the State in G.O. No. ED 28 PGC 94 dated 29-Apr-1994 (Kannada)

63-66

12 Annexure G translated into English 67-74

13 Annexure HOrder and Judgment of this Court in W.P.15177/07, a case not involving the Petitioners herein – but which Order directs Respondents to dispose Registration Applications within 3 Months.

75-79

14 Vakalath 80-81

K.V.DHANANJAY.

Bangalore Roll No.KAR/659/2002

Date: 09-Mar-2009 ADVOCATE FOR PETITIONERS

Address for Service of Notice:

K.V.DHANANJAY.

No.296

Kamakshipalya

Magadi Main Road

Bangalore 560 079

1

IN THE HIGH COURT OF KARNATAKA


WRIT PETITION No. of 2009 (EDN. REG-P)

BetweenKarnataka Unaided Schools Management’s Association And Anr.

Petitioners

VERSUS

State of Karnataka And Others. Respondents

SYNPOSIS AND LIST OF DATES

29-Apr-1994 The Government of Karnataka introduces a new

Rule for educational institutions in Karnataka that

says that the ‘medium of instruction in primary

standards (I to V) shall henceforth be in mother

tongue of the child or in Kannada’.

The said Rule was not passed by the State

Legislature into any statute but was notified by the

Executive Government through an Order (G.O.

No.ED 28 PGC 94)

Educational institutions in India have an

overwhelming need to impart ‘English medium

instruction’ for the primary standards. Relying upon

a long list of judgments rendered by our Supreme

Court, Petitioner 1, Karnataka Unaided Schools

Management’s Association, a Registered Society that

represents more than a thousand unaided

educational institutions in the State, sought

intervention of this Hon’ble Court under Article 226

of the Constitution.

2

A Full Bench came to be constituted to decide upon

the issues presented by a host of such Writ

Petitions.

20-Jan-1995 The Karnataka State Legislature passes a Statute,

‘The Karnataka Education Act, 1983’. The said Act

requires every educational institution to which it

applies to seek ‘Registration’ under it. Failure to so

register renders such an institution as ‘illegal’ and

penalties are prescribed under the Act.

Curiously, nowhere does the Act itself lay down that

‘medium of instruction in primary standards shall

henceforth be in mother tongue of the child or in

Kannada’.

23-May-2004 Petitioner 2, Rajajinagar Education Society, is a

Registered Society and is a member of Petitioner 1.

It has established and administers ‘Sri Aurobindu

Vidya Mandir’ an educational institution for primary

standards. The said ‘Sri Aurobindu Vidya Mandir’ is

registered on this day under the provisions of the

‘Karnataka Education Act, 1983’. The Registration

Certificate specifies the ‘Medium of Instruction’ as

‘Kannada’.

02-Jul-2008 The Full Bench of the Karnataka High Court issues

its Order and Judgment in the 1994 Writ Petitions.

It upholds the claims of the Writ Petitioners, allows

the Writ Petitions and declares as void, the offending

provisions of the impugned Government Order. It

holds:

198. In the light of the aforesaid discussion and in

3

response to the reference, we record the following

conclusions:

1) Right to education is a fundamental right being

a species of right to life flowing from Article 21

of the Constitution. By virtue of Article 21-A

right to free and compulsory primary education

is a fundamental right guaranteed to all

children of the age of six to fourteen years. The

right to choose a medium of instruction is

implicit in the right to education. It is a

fundamental right of the parent and the child to

choose the medium of instruction even in

primary schools.

2) Right to freedom of speech and expression

includes the right to choose a medium of

instruction.

3) Imparting education is an occupation and,

therefore, the right to carry on any occupation

under Article 19(1)(g) includes the right to

establish and administer an educational

institution of one's choice. 'One's choice'

includes the choice of medium of instruction.

4) Under Article 26 of the Constitution of India

every religious denomination has a right to

establish and maintain an institution for

charitable purposes which includes an

educational institution. This is a right available

to majority and minority religious

denominations.

5) Every section of the society which has a

distinct language script or culture of its own

has the fundamental right to conserve the

4

same. This is a right which is conferred on both

majority and minority, under Article 29(1) of the

Constitution.

6) All minorities, religious or linguistic, have a

right to establish and administer educational

institutions of their choice under Article 30(1) of

the Constitution.

7) Thus, every citizen, every religious

denomination, and every linguistic and

religious minority, have a right to establish,

administer and maintain an educational

institution of his/its choice under Articles

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

India, which includes the right to choose the

medium of instruction.

8) No citizen shall be denied admission to an

educational institution only on the ground of

language as stated in Article 29(2) of the

Constitution of India.

9) The Government policy in introducing Kannada

as first language to the children whose mother

tongue is Kannada is valid. The policy that all

children, whose mother tongue is not Kannada,

the official language of the State, shall study

Kannada language as one of the subjects is

also valid. The Government policy to have

mother tongue or regional language as the

medium of instruction at the primary level is

valid and legal, in the case of schools run or

aided by the State.

10) But, the Government policy compelling

children studying in other Government

5

recognized schools to have primary education

only in the mother tongue or the regional

language is violative of Article 19(1)(g) , 26 and

30(1) of the Constitution of India.

199. (a) Accordingly, the Writ Petitions except W.P.

No. 21052/1994 and W.P. No. 5618/1993 and the

Writ Appeal are partly allowed, quashing Clauses (2),

(3), (6) and (8) of the impugned order in its application

to schools other than schools run or aided by the

Government

(b) The rest of the Government Order is upheld. All

the orders, endorsements, circulars, issued giving

effect to the aforesaid Clauses (2), (3), (6) and (8) in

the impugned order are also quashed.

22-Oct-2008 Petitioner 2, in respect of its educational institution,

‘Sri Aurobindu Vidya Mandir’ seeks a change of

‘Registration’ to ‘English Medium’ in respect of

Academic Year 2009-10. Lodges appropriate Forms

and pays requisite Fees before the appropriate

Officer, Respondent 3.

25-Feb-2009 Respondent 3 issues a ‘Rejection Order’ against the

‘Registration Application’ of Petitioner 2. The

reasons assigned are that the Full Bench Order

need not be enforced for the moment because it is

the subject of appeal before the Hon’ble Supreme

Court.

Certainly, the Respondents are bound to be aware of

the often quoted dicta of our Supreme Court:

It is well settled that mere preferring of an appeal

does not operate as stay on the decree or order

6

appealed against nor on the proceedings in the court

below. A prayer for the grant of stay of proceedings

or on the execution of decree or order appealed

against has to be specifically made to the appellate

Court and the appellate Court has discretion to grant

an order of stay or to refuse the same.

Atma Ram Properties v. Federal Motors [Supreme Court / 2004 (10) SCALE 345 : (2005) 1 SCC 705 / R.C. Lahoti, C.J. and G.P. Mathur, J]

The Petitioners assert that it is outrageous for

Respondent 3 (who is generally sued in his official

capacity in hundreds of Writ Petitions filed every

year by affected educational institutions before this

Court and who is therefore, reasonably expected to

be mindful of Court affairs and of binding nature of

Court Orders) to suggest that the Full Bench Order

of this Court is not binding unless affirmed by the

Supreme Court.

The legal effect of the said ‘Rejection Order’ is such

that, the DDPI has decided, at his sole discretion,

that:

a) he is aware of the Full Bench Order of the

Karnataka High Court on the G.O and he reads it

in a manner he thinks fit;

b) as he reads the Full Bench Order, it is in favour

of private unaided educational institutions and if

enforced, would benefit the specific application

before him;

c) he would have implemented the said Order if

only the same not been appealed to the Supreme

Court;

7

d) the Full Bench Order has been appealed to the

Supreme Court, he is not legally bound to

implement the same until the Supreme Court

approves the judgment of the High Court;

e) he has no opinion on the likely time it would take

for the Supreme Court to resolve the appeal;

f) he thinks it prudent to return the Application

Form and the Fees collected thereunder and by

doing so, he has indicated that the Supreme

Court may take longer to dispose of the appeal

before it;

g) he does not think any ‘stay’ was obtained in

respect of the Full Bench Order either before the

High Court itself or before the Supreme Court;

h) he does not think any such ‘stay’ is material to

his decision to not enforce the Full Bench Order

for the moment.

09-Mar-2009 The Petitioners assert that the cause of action in the

instant petition is a matter of paramount concern to

them. Accordingly, Petitioners retain a primary

concern in ensuring that the ‘Language Policy’ of

Karnataka be not enforced by the Respondents in a

manner inconsistent with the Full Bench Order.

The Petitioners reasonably assert that the violation

of their fundamental rights by the conduct of

Respondents herein is such that the Relief sought

herein offers an adequate remedy under the

circumstances. And the Relief sought is a restraint

upon Respondents from enforcing the ‘Language

Policy’ of the State in a manner inconsistent with

8

the Full Bench Order of this Court and for a

direction to ‘Register’ forthwith, ‘English Medium

Instruction’ in the very educational institution

established and administered by Petitioner 2 (whose

application as such was wrongfully rejected for

reasons that are utterly devoid of any legal merit)

So filed, for the enforcement of the fundamental

rights of the Petitioners, for registration ‘forthwith’

and for an injunction against Respondents from

wantonly enforcing the ‘language policy’ of the State

in utter disregard of the Full Bench Order of this

Court.

K.V.DHANANJAY.




K.V.DHANANJAY.

No.296

Kamakshipalya

Magadi Main Road

Bangalore 560 079

9



WRIT PETITION NO /2009 (EDN. REG-P)

Between:

1 Karnataka Unaided Schools Management’s AssociationA Registered Society Represented by its PresidentG.S.SharmaAge 83 yearsNo.9, V.V.RoadV.V.PuramBangalore 560 004

Petitioners

2 Rajajinagar Education SocietyA Registered SocietyRepresented by its SecretaryM.Sitarambhat GudiAge 77 YearsNo.6/C, 5th Main2nd Stage, Dr.M.C.Modi RoadMalakshmipuramBangalore 560 086

AND

1 State of KarnatakaRepresented by its Principal SecretaryPrimary and Secondary Education DepartmentM.S.Building Bangalore 560 001

Respondents

2 Commissioner for Public InstructionDepartment of EducationNrupatunga Road

10

Bangalore 560 001

3 Deputy Director of Public InstructionBangalore North Bangalore 560 002

MEMORANDUM OF WRIT PETITION FILED UNDER

ARTICLE 226 OF THE CONSTITUTION OF INDIA

The Petitioners hereinabove respectfully submit:

1. The instant petition is filed under Article 226 of the

Constitution of India invoking the Writ jurisdiction of this

Hon’ble Court.

2. Petitioner 1, the Karnataka Unaided Schools

Management’s Association (KUSMA for short) is organized

as a ‘Society’ whose members are comprised only of

educational institutions in the State of Karnataka. This

‘Society’ is registered under the State Law in force for the

Registration of ‘Societies’ and has been continually

registered at all relevant times – S.No.438/83-84 dated

08-Mar-1984. A copy of the ‘Certificate of Registration’

dated 08-Mar-1984 is produced herewith and marked as

Annexure A. Membership of this Society is open only to

those educational institutions which are privately

organized and which do not receive aid1 or assistance of

any kind from the Government, State or Central.

Membership to KUSMA is strictly enforced and the current

membership of KUSMA stands slightly above One

1 Section 2(18) of the Act defines ‘Grant’ as

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

11

Thousand educational institutions. The Founder and

President of KUSMA, Sri G.S.Sharma, aged 83 years, is

authorised and competent to initiate and conduct this legal

proceeding.

3. Petitioner 2, Rajajinagar Education Society is a ‘Society’ of

persons registered under the State Law in force for the

Registration of ‘Societies’ and has been continually

registered at all relevant times – S.No. 77/67-68 dated

26-Jul-1967. A copy of the ‘Certificate of Registration’

dated 26-Jul-1967 is produced herewith and marked as

Annexure B. This Society has established an educational

institution bearing the name ‘Sri Aurobindu Vidya Mandir’

for conducting classes for the Primary standards. The said

educational institution is located at C.A.Site No.56, Ward

No.16(L), 2nd Cross, 3rd Stage, Off Kirloskar HBCS

Layout, Near Kamalanagar, Bangalore 560 079. The said

‘Sri Aurobindu Vidya Mandir’ is further unaided and

receives no Grant of any kind from the Government. The

Secretary thereof, Sri M. Sitarambhat Gudi, aged 77 years,

is authorised and competent to initiate and conduct this

legal proceeding.

4. Petitioner 2 is a member of Petitioner 1. Petitioners 1 and 2

share a common cause of action against the Respondents

and hence, this common Writ Petition. The Court fee

however, has been individually assessed and paid against

each Petitioner.

5. Respondent No.1 is the State of Karnataka that is

represented herein by the designated officer in the

‘Department of Education’. In exercise of power to legislate

12

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, 19832 with effect from 20-Jan-

1995. The said statute will be hereinafter referred to as

‘Act’ wherever the context admits.

6. Respondent 2, the Commissioner of Public Instruction is

the Office to which has been delegated, under Section 143

of the Act3, several powers vested in the State Government

under the Act.

7. Respondent 3 is the Deputy Director of Public Instruction,

an office entrusted with the function of a ‘Registering

Authority’ in respect of educational institutions seeking to

register4 under the Act. This Act seeks registration of every

educational institution without which (registration) the Act

proceeds to declare such educational institution as illegal.

Respondent 3 shall also be referred to as ‘DDPI’ wherever

the context admits.

2 ‘for the purpose of providing ‘better organisation, development, discipline and control of the educational institutions in the State’. - PREMABLE3 Section 143 – Delegation – The State Government may by notification in the official Gazette, delegate all or any powers exercisable by it under this Act or rules made thereunder, in relation to such matter and subject to such conditions, if any, as may be specified in the direction, to be exercised also by such officer or authority subordinate to the State Government as may be specified in the notification.

4 In terms of Notification No.ED 68 AAV 96, dated 30-06-1997 issued by Respondent 1, the State of Karnataka, in exercise of powers conferred by clause 31 of Section 2 of the Karnataka Education Act, 1983. – The Registering Authority in respect of English Medium Primary Schools is the Deputy Director of Public Instruction of the concerned District for the District. In respect of Non-English Medium Primary Schools, it is the Block Education Officer of the concerned Block for the Block.

13

8. As required under Section 305 of the Karnataka Education

Act, 1983, the said ‘Sri Aurobindu Vidya Mandir’ was duly

registered with the prescribed authority on 23-May-2004.

A copy of the ‘Certificate of Registration’ is produced

herewith and marked as Annexure C. The said ‘Certificate

of Registration’ prescribes the ‘Medium of Instruction’ as

‘Kannada’ in respect of Primary Classes – Standards I to V.

9. The Petitioners humbly submit that the ‘English’ language

is an inspirational language for most people in this country

and an absolute requirement for many people in this

country. The Petitioners submit that they personally know

of no one, to repeat, no one, in Bangalore who desires to

educate his or her child in a language other than English

at the early stages.

10. The petitioners further submit that it is no exaggeration to

say that a disability to read, write and speak English is

recognised by most citizens of our country as a severe

limitation upon a full functioning of an individual citizen.

11. The State of Karnataka has declared a power to regulate

general education, professional education, medical

5 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.

14

education, technical education, commerce education and

special education at all levels in Section 3 of the Act6.

12. On 22-Oct-2008, Petitioner 2, wrote to Respondent 3

seeking a change in the ‘medium of instruction’ to ‘English’

for the Academic Year 2009-10 and beyond in respect of

‘Sri Aurobindu Vidya Mandir’. A copy of the letter dated 22-

Oct-2008 addressed thereat is produced herewith and

marked as Annexure D. A copy of the Application Form

dated 23-Oct-2008 in the prescribed FORM 17 is produced

herewith and marked as Annexure E. Every such

application is required to be made on a Fee of Rs.5000

which was duly tendered and acknowledged by the

receiver.

6 Section 3(2) of the Act lays down that:The State Government may towards that end-

a) establish and maintain educational institutions;b) permit any local authority or a private body of persons to establish

educational institutions and maintain them according to such specifications as may be prescribed;

c) require registration of educational institutions including tutorial institutions;

d) recognise educational institutions;e) grant aid to any recognised educational institution in furtherance of the

objects of this Act;f) regulate the admission including the minimum or maximum number of

persons to be admitted to any course in any educational institution or class of such institutions and the minimum age for such admissions

g) prescribe the conditions of eligibility of or admissions to any educational institutions or class of such institutions;

h) establish hostels or recognise private hostels and frame rules for grant-in-aid to recognise private hostels;

i) permit or establish institutions imparting education in arts, crafts, music, dance, drama or such other fine arts, physical education including sports;

j) permit and establish institutions or centres for pre-primary education, adult education and non-formal education and;

k) take from time to time such other steps as they consider necessary or expedient

7 Rule 3(1) of The Karnataka Educational Institutions (Classification And Registration) Rules, 1997.

15

13. The petitioners humbly submit that the choice of a

medium of instruction solely vests in the child and its

parents. This freedom is not lost under our Constitution

and the State of Karnataka can make no provision to the

contrary. The Petitioners, in seeking to establish

educational institutions that impart education in English

medium are expressing the will of the parents, whose

preference for English medium instruction is their sole

prerogative.

14. The State simply possesses no power to refuse the

registration of an English medium educational institution.

The legal definition of ‘Register’ is generally cited as ‘an

effort to formally secure or to obtain official entry in a

register kept for certain purposes’. As such, to ‘register’ is

not the same as to ‘obtain permission’. This distinction

alone serves to explain that a refusal to register cannot be

grounded on arbitrary considerations.

15. However, Respondent 3 issued a ‘Rejection Order’ on 25-

Feb-2009 in relation to the application by Petitioner 2 for

change of ‘Medium of Instruction’ from Kannada to

English. A copy of the same is produced herewith and

marked as Annexure F. An English Translation follows

Annexure F. In pertinent part, it says:

…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

16

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

(D.D.No.279146) is returned hereby. You are directed to

receive back your Application from the Block Education

Officer concerned.

16. The legal effect of the said ‘Rejection Order’ is such that,

the DDPI has decided, at his sole discretion, that:

a) he is aware of the Full Bench Order of the Karnataka

High Court on the G.O and he reads it in a manner he

thinks fit;

b) as he reads the Full Bench Order, it is in favour of

private unaided educational institutions and if enforced,

would benefit the specific application before him;

c) he would have implemented the said Order if only the

same not been appealed to the Supreme Court;

d) the Full Bench Order has been appealed to the Supreme

Court, he is not legally bound to implement the same

until the Supreme Court approves the judgment of the

High Court;

17

e) he has no opinion on the likely time it would take for

the Supreme Court to resolve the appeal;

f) he thinks it prudent to return the Application Form and

the Fees collected thereunder and by doing so, he has

indicated that the Supreme Court may take longer to

dispose of the appeal before it;

g) he does not think any ‘stay’ was obtained in respect of

the Full Bench Order either before the High Court itself

or before the Supreme Court;

h) he does not think any such ‘stay’ is material to his

decision to not enforce the Full Bench Order for the

moment.

17. The ‘Rejection Order’ makes a reference to a Government

Order G.O. No.ED 28 PGC 94 dated 29-Apr-1994. The said

Order of the State of Karnataka was designed to operate

from the academic year 1994-1995. The same came to be

questioned in a host of Writ Petitions before this Hon’ble

Court. The said Order is also known as the ‘language

policy’ of Karnataka. The said Order, in clause-g, clearly

forbid the registration of any educational institution that

would impart education in English medium in respect of

students whose mother tongue was not English. The said

language policy also consisted of several other clauses that

were seriously contested by educational institutions some

of whom belonged to linguistic and religious minority

groups. The said G.O is produced herewith and marked as

Annexure G. (a translated copy follows Annexure G). In

pertinent part, it said:

18

(g) From the Academic year 1994-95, all educational

institutions recognised by the State shall have medium of

instruction for standards 1 to 4 only in the mother tongue of

the child or in Kannada.

(h) From the Academic years 1994-95, students enrolling for

the 1st Standard shall have mother tongue or Kannada as a

medium of instruction.

18. Upon hearing the Writ petitions so presented8, this Court

discovered a conflict of opinion between earlier Division

Benches of this Court on the issues presented by such

Writ petitions. As such, a Full Bench of this Court was

constituted in terms of Section 7 of the Karnataka High

Court Act, 1961. The Full Bench delivered its Order and

Judgment on the 02-Jul-2008 allowing the Writ petitions

and issued consequential directions there under.

19. The Full Bench had formulated the ‘points for

consideration’ (para 33) as under:

Points for consideration:

33. In the light of the aforesaid submissions, the questions

that arise for consideration are as under:

Is the right to choose the medium of instruction at the

primary level, either to study or impart education, a

8 Writ Petition Nos.14363 of 1994 (Education) connected with Writ Petition Nos.14377, 15491, 19453, 22563 of 1994, 30645 of 1999, 25647, 18571, 19331, 17337, 18787, 19469, 20165, 17338 of 1994, Writ Appeal No.2415 of 1995, Writ Petition Nos.11785, 29540 of 1995, 22752, 19434 of 1994, 900 of 2000, 17677, 19346 of 1994, 34396, 34684 and 34185 of 1996;

19

fundamental right guaranteed under any of the Articles

19(1)(a)(g) , 26, 29 and 30(1) of the Constitution of India?

Can the State by way of regulation restrict the said right of

choice to mother tongue or regional language only?.

20. The Full Bench said:

34. The answer to these intricate questions covers various

components such as the opinion of experts in the

educational field, opinion of statesmen, legal and

constitutional issues, concept of rights, in particular

fundamental rights under the Indian Constitution, concerns

of citizens and in particular the parents of the child, social

and cultural issues, interests of the language, State and

Nation, rights and obligations of a State in a democratic set

up and a host of other factors. It is in this backdrop we have

attempted to answer the issues raised in this case.

21. The Full Bench allowed the claims of the petitioner

educational institutions. By a unanimous Order and

Judgment dated 02-Jul-2008 (hereinafter referred to as the

‘Full Bench Order’ wherever the context admits), the Full

Bench decided the issues for consideration before it as

under:

198. In the light of the aforesaid discussion and in response

to the reference, we record the following conclusions:

1) Right to education is a fundamental right being a

species of right to life flowing from Article 21 of the

Constitution. By virtue of Article 21-A right to free and

20

compulsory primary education is a fundamental right

guaranteed to all children of the age of six to fourteen

years. The right to choose a medium of instruction is

implicit in the right to education. It is a fundamental

right of the parent and the child to choose the medium

of instruction even in primary schools.

2) Right to freedom of speech and expression includes

the right to choose a medium of instruction.

3) Imparting education is an occupation and, therefore,

the right to carry on any occupation under Article

19(1)(g) includes the right to establish and administer

an educational institution of one's choice. 'One's choice'

includes the choice of medium of instruction.

4) Under Article 26 of the Constitution of India every

religious denomination has a right to establish and

maintain an institution for charitable purposes which

includes an educational institution. This is a right

available to majority and minority religious

denominations.

5) Every section of the society which has a distinct

language script or culture of its own has the

fundamental right to conserve the same. This is a right

which is conferred on both majority and minority,

under Article 29(1) of the Constitution.

6) All minorities, religious or linguistic, have a right to

establish and administer educational institutions of

their choice under Article 30(1) of the Constitution.

21

7) Thus, every citizen, every religious denomination, and

every linguistic and religious minority, have a right to

establish, administer and maintain an educational

institution of his/its choice under Articles 19(1)(g), 26

and 30(1) of the Constitution of India, which includes

the right to choose the medium of instruction.

8) No citizen shall be denied admission to an educational

institution only on the ground of language as stated in

Article 29(2) of the Constitution of India.

9) The Government policy in introducing Kannada as first

language to the children whose mother tongue is

Kannada is valid. The policy that all children, whose

mother tongue is not Kannada, the official language of

the State, shall study Kannada language as one of the

subjects is also valid. The Government policy to have

mother tongue or regional language as the medium of

instruction at the primary level is valid and legal, in

the case of schools run or aided by the State.

10) But, the Government policy compelling children

studying in other Government recognized schools to

have primary education only in the mother tongue or

the regional language is violative of Article 19(1)(g) , 26

and 30(1) of the Constitution of India.

199. (a) Accordingly, the Writ Petitions except W.P. No.

21052/1994 and W.P. No. 5618/1993 and the Writ Appeal

are partly allowed, quashing Clauses (2), (3), (6) and (8) of

the impugned order in its application to schools other than

schools run or aided by the Government

22

(b) The rest of the Government Order is upheld. All the

orders, endorsements, circulars, issued giving effect to the

aforesaid Clauses (2), (3), (6) and (8) in the impugned order

are also quashed.

(c) Writ Petitions 21052/1994 and 5618/1993 are delinked

and they are sent back to the single Bench for decision in

the light of this judgment

No costs.

22. The Petitioners believe that the State did not seek from the

Full Bench, any Interim Stay upon its Order for any length

of time. The State preferred to seek ‘Leave to Appeal’ to the

Supreme Court under Article 136 of the Constitution. It

filed a Special Leave Petition (S.L.P.) for that purpose on

31-Jul-2008. S.L.P. Nos. 18139 to 18163 of 2008 were

filed in a single petition in respect of the Common Order of

the Full Bench.

23. It is further submitted that Petitioner 1, Karnataka

Unaided Schools Management’s Association (KUSMA) is

one of the initial 1994 petitioners before this Court.

KUSMA is the petitioner in W.P.14377 of 1994 before this

Court. Aggrieved by the Common Order of the Full Bench

dated 02-Jul-2008, the State has filed a Special Leave

Petition No.18140 in respect of the Full Bench Order in

W.P.14377 of 1994. KUSMA has been in receipt of Notice

and is contesting the Special Leave Petition.

24. The Main prayer in the Special Leave Petition filed by the

State says:

23

MAIN PRAYER

Therefore, it is humbly and respectfully prayed before this

Hon’ble Court that it may be pleased to:

a) Grant the petitioners Special leave to Appeal against

the Judgment dated 02-Jul-2008 passed by the High

Court of Karnataka at Bangalore in Writ Petition

Nos.14363 of 1994 (Education) connected with Writ

Petition Nos.14377, 15491, 19453, 22563 of 1994,

30645 of 1999, 25647, 18571, 19331, 17337, 18787,

19469, 20165, 17338 of 1994, Writ Appeal No.2415 of

1995, Writ Petition Nos.11785, 29540 of 1995, 22752,

19434 of 1994, 900 of 2000, 17677, 19346 of 1994,

34396, 34684 and 34185 of 1996;

b) Grant such other and further reliefs as this Hon’ble

Court may deem fit and proper in the interest of justice

and equity.

25. The State further sought ‘Interim Relief’ in its Special leave

Petition on the following terms:

INTERIM RELIEF

It is most humbly and respectfully prayed before this

Hon’ble Court that it may be pleased to:

a) Pass an ex-parte ad-interim Order staying the

operation of the Judgment dated 02-Jul-2008 passed

by the High Court of Karnataka at Bangalore in

Nos.14363 of 1994 (Education) connected with Writ

24

Petition Nos.14377, 15491, 19453, 22563 of 1994,

30645 of 1999, 25647, 18571, 19331, 17337, 18787,

19469, 20165, 17338 of 1994, Writ Appeal No.2415 of

1995, Writ Petition Nos.11785, 29540 of 1995, 22752,

19434 of 1994, 900 of 2000, 17677, 19346 of 1994,

34396, 34684 and 34185 of 1996;

b) Confirm the above stay after notice of motion to the

respondents;

c) Pass such other or further interim Orders as this

Hon’ble Court may deem fit and proper in the interest

of justice and equity.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER, AS IN

DUTY BOUND SHALL EVER PRAY

DRAWN BY

(B.MANOHAR)

ADDL. GOVERNMENT

ADVOCATE

ADVOCATE GENERAL’S OFFICE

HIGH COURT BUILDINGS

BANGALORE 560 001

FILED BY:

(SANJAY R HEGDE)

ADVOCATE

SUPREME COURT

NEW DELHI

26. The Grounds in support of its ‘interim Relief’ were stated in

the Special Leave Petition’ as under:

GROUNDS FOR INTERIM RELIEF

25

6.1. The Respondents are running primary schools. They

had challenged the Government Order dated 29-Apr-1994

which requires that the medium of instruction in primary

schools should be the mother tongue of the child or

Kannada. The petitioners apprehending that pursuant to the

Government Order, their schools may have to discontinue

classes which are held in English medium, in so far as the

children whose mother tongue is not English sought for stay

of the Government Order. Under the circumstances, an

undertaking was given by the State that they will not direct

closure of these recognised institutions for non-compliance

with the Government Order dated 29-Apr-1994. The same

interim Order continued till the disposal of the writ petitions.

The interim Order was thus confined to those schools which

are recognised institutions and which were running English

medium schools.

6.2 Schools which got recognition subsequent to the

Government Order dated 29-Apr-1994 are all schools which

specifically got recognition for imparting education in mother

tongue or Kannada in primary schools. Such schools had

filed writ petitions before the High Court of Karnataka

seeking to impart education in English in primary schools.

The same was not acceded to by the High Court and they

were given time to comply with the undertakings given by

them to run the schools in mother tongue or Kannada

language.

6.3 Having regard to the Order impugned in this Special

Leave Petition, all the schools which do not get aid from the

Government will start running schools in English medium.

The same would be contrary to the very Government Order

26

and the policy of Government which policy has been upheld

by this Hon’ble Court way back in the year 1994. Under the

circumstances, there is a need to issue an Order of Stay,

staying the impugned Order. Unless such an Order is

passed, irreparable injury will be caused to the petitioners

and the general public.

27. The Special Leave Petition was heard by the Supreme

Court on 29-Aug-2008. The Court expressed its view that

parents are not bound by wisdom of international experts

in the matter of education of their children and that they

have a constitutional right to choose the medium of

instruction of their choice unfettered by opinion of experts.

The Court merely directed formal ‘Notice’ to Respondents

and did not ‘Stay’ the Order of the Court below.

28. It is submitted that the Deputy Director of Public

Instruction decides on matters presented to him in his own

right and not as an agent or a proxy for another Officer.

Further, the authority to decide upon a Registration

application is vested under the Statute and the DDPI is a

permanent office under that statute. Accordingly, the DDPI

performs a function for the proper discharge of which, he

should necessarily implement judgments of a competent

Court that touch upon the provisions of law under which

applications are made to him.

29. Under these circumstances, it is evident that the DDPI has

decided, at his sole discretion, that:

27

i) he is aware of the Full Bench Order of the Karnataka

High Court on the G.O and he reads it in a manner he

thinks fit;

j) as he reads the Full Bench Order, it is in favour of

educational institutions and if enforced, would benefit

the specific application before him;

k) he would have implemented the said Order if only the

same not been appealed to the Supreme Court;

l) the Full Bench Order has been appealed to the Supreme

Court, he is not legally bound to implement the same

until the Supreme Court approves the judgment of the

High Court;

m)he has no opinion on the likely time it would take for

the Supreme Court to resolve the appeal;

n) he thinks it prudent to return the Application Form and

the Fees collected thereunder and by doing so, he has

indicated that the Supreme Court may take longer to

dispose of the appeal before it;

o) he does not think any ‘stay’ was obtained in respect of

the Full Bench Order either before the High Court itself

or before the Supreme Court;

p) he does not think any such ‘stay’ is material to his

decision to not enforce the Full Bench Order for the

moment.

28

30. In saying so, the DDPI demonstrates knowledge of the fact

that the Full Bench Order has been appealed before the

Supreme Court. However, it is without doubt that the DDPI

makes a completely wrong assertion in so far as the legal

implications of an appeal are concerned.

31. A Writ lies to a High Court under Article 226 to correct a

subjective assessment of an objective fact by an agent of

the State particularly where such agent is vested with

functions the discharge of which affects the fundamental

rights of citizens.

32. The law relating to appellate remedies is too well

established to merit any doubt under these circumstances.

An appeal is always a statutory remedy and may be varied,

modified, removed, expanded or extinguished by the

Statute.9

33. Where prerogative Writs are issued by a High Court in

exercise of powers under Articles 226 or 227 of the

Constitution, the Order and Judgment of that Court

attains finality in so far as that Court is concerned unless

it is specifically stayed by the Court issuing the Order or

by a Court superior to it under the law. A superior Court 9 “All appeals…exist merely by statute and unless the statutory conditions are fulfilled, no jurisdiction is given to any Court of justice to entertain them”Ohene Moore v. Akesseh Tayee [Privy Council / AIR 1935 PC 5 (6) : 153 IC 908 (PC)]

“This Court said that right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is statutory right can be conditional or qualified.”Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the city of Ahmedabad and Ors.[Supreme Court / AIR 1999 SC 1818 : (1999) 4 SCC 468 / D.P. Wadhwa and N. Santosh Hegde, JJ.]

29

could only be the Supreme Court or an intra-Court to

which an appeal lies under the Letters patent or the

Charter of that High Court.

34. In view of the fact that Article 21410 of our Constitution

mandates a High Court for every State, an Order and

Judgment of this Hon’ble Court under Article 226 or 227

attains finality in the State of Karnataka unless:

a) an intra Court appeal, permissible under Section 4 of

the Karnataka High Court Act, 1961, is filed there

under and the appellate Bench issues a stay on the

Order of the Court below;

b) a certificate to appeal in pursuance of Articles 132 or

133 of the Constitution is sought and the High Court

grants a certificate thereunder with a corresponding

stay upon its ‘Order’ pending appeal to the Supreme

Court;

c) on a Special Leave Petition under Article 136 of the

Constitution, the Supreme Court grants, at its sole

discretion, a stay upon the ‘Order’ of the High Court

pending disposal of the ‘Special Leave Petition’;

d) the High Court, upon a formal request or on its own,

grants an interim stay for a specific period upon its

‘Order’ to enable a party to its Order to appeal to the

Supreme Court or to an Intra-Court. An interim stay so

10 Article 214 – There shall be a High Court for each State.

30

issued, operates only for such time stated by the Court

issuing it.

35. While it is obvious that the Order and Judgment of a Full

Bench of the High Court cannot be appealed except before

the Supreme Court, the State did not pursue before the

Full Bench, any formal request for an ‘interim stay’ upon

its ‘Order’. In view of the same, the Full Bench Order has

become enforceable in the State of Karnataka since the

date on which it was delivered – 02-Jul-2008.

36. 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.

37. The ‘Rejection Order’ by the DDPI is tantamount to

asserting that the law declared by this Hon’ble Court is

only provisional and that unless approved by the Supreme

Court, he is free to disregard the same. The Petitioners

state that such an assertion is outrageous, to say the least.

38. It is further submitted that this Court, in an unconnected

matter, Writ Petition No.15177 of 2007 (which involved the

rejection of ‘Registration’ of ‘English Medium Instruction’ in

certain schools) quashed similar ‘Rejection Orders’ on 19-

Nov-2008 and directed the Respondents to dispose of fresh

Registration Applications by the petitioners therein within

31

a period of three months. A certified copy of the said Order

dated 19-Nov-2008 is produced herewith and marked as

Annexure H. Specifically, this Court said:

“4. Mr.K.V.Dhananjay, learned counsel appearing for the

petitioner submits that the petitioners have made

applications to the respondents to register their schools for

the required curriculum for the academic year 2009-10. It is

also submitted that the applications are given before 31-10-

2008, which is the cut-off date”

“5. Having regard to the fact that the applications are

pending consideration since 1st of November, the

respondents are directed to consider the same within an

outer limit of three months from the date of receipt of this

Order”

39. Petitioner 1, upon learning of the above Order of this Court

has made extensive efforts to inform Respondents on their

obligation to not indefinitely hold up Registration

Applications and copies of the said Order were circulated

amongst member schools of Petitioner 1.

40. The action of the Respondents violates the petitioners’

freedom of speech and expression. Freedom of speech and

expression always includes a freedom of thought. Freedom

of thought, speech and expression necessarily include a

freedom of language. If there is no freedom of language,

there can be no freedom of the other. Accordingly, no law

can be made in our country that states that the State shall

refuse to recognize the right to ‘freedom of speech and

expression’ unless such right is expressed in a particular

32

language and not in another. The situation of the

Petitioners in being denied the registration of an ‘English

medium school’ is squarely covered by the prohibition11

cast upon a State by our Constitution.

41. The petitioners fully agree with the Full Bench Order and

they may be allowed to adopt the reasoning advanced in

the Full Bench Order to the fullest extent in this

proceeding. The petitioners assert that their fundamental

rights guaranteed under Part III of the Constitution is fully

violated by the action of Respondents. Specifically, the

action of Respondent 3 in refusing to register the

petitioners’ proposal to impart ‘English Medium

Instruction’ in petitioners’ schools violates Articles 19(1)(a),

19(1)(g), 21 and Article 26 of the Constitution.

42. The Petitioners submit that there can be no dispute about

there being a duty upon Respondents to enforce the Full

Bench Order. Our Supreme Court has often declared that

a mere appeal does nothing by itself to stay the Order of

the Court below. It says:

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 below. A prayer for the grant

of stay of proceedings or on the execution of decree or order

appealed against has to be specifically made to the

appellate Court and the appellate Court has discretion to

grant an order of stay or to refuse the same.

11 Article 13 (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

33

Atma Ram Properties v. Federal Motors [Supreme Court /

2004 (10) SCALE 345 : (2005) 1 SCC 705 / R.C. Lahoti,

C.J. and G.P. Mathur, J]

“As is well-known, mere filing of an appeal does not operate

as a stay or suspension of the order appealed against.”

Collector of Customs, Bombay v. Krishna Sales [Supreme

Court / AIR 1994 SC 1239 : 1994 Supp (3 )SCC 73 / B.P.

Jeevan Reddy and S.P. Bharucha, JJ.]

43. The petitioners further submit that High Courts across the

country have consistently disapproved the practice of

litigants refusing to enforce its Orders merely on the

premise that they have appealed to the Supreme Court

“…Against the order of the Appeal Court, even an S.L.P.

has been filed but stay has not been obtained.”

“It is well known that the mere filing of an appeal does

not operate as a stay of the order appealed against. …

Therefore, ignoring the order of the Court an attempt has

been made to alter the factual possession...”

“It is accepted on authority and also on principle that

when an action is taken in violation of an order of Court

the resultant action is not only contumacious but is also

void for illegality [See the Judgment of Sir Robert

Megarry. Vice-Chancellor in the case of Clarke v.

Chatburn, reported in (1985)1 All England Report 211 at

page 215].”

“These principles in Clarke have been quoted with

approval by the Supreme Court in the case of Delhi

34

Development Authority v. Skipper Construction Company

(P) Ltd. and Another….”

STP Limited v. Nirmaljit Singh Hoon [High Court of

Calcutta – AIR 2002 Cal 91 : (2002) 1 CALLT 76 (HC) /

A.K.Ganguly, J]

44. The petitioners assert that a failure of the State to obtain a

Stay even after 180 days since its appeal to the Supreme

Court coupled with the refusal of its officers to enforce the

Full Bench Order is a severe disruption of the judicial

power of this Court.

“Respondents on being noticed have filed their reply ...

They have submitted that mere filing of SLP against the

order of CEGAT would not operate as an order of stay,

unless specific order of stay has been passed by the

Supreme Court in this regard. They have further

submitted that as long as the order of CEGAT has not

been set aside and quashed, it is the bounden duty of the

petitioners to continue to pay the amount of duty as

directed in the order of CEGAT, even if the same is

subject matter of challenge in the SLP. They have placed

reliance on the judgments of several High Courts to

contend that in absence of any specific order of stay,

mere filing of appeal would not operate as stay.”

“There does not appear to be any dispute to the legal

position that unless a specific order has been passed by

the appellate court, mere filing of an appeal would not

operate as stay. Petitioners were granted several

opportunities to approach the Supreme Court and obtain

order of stay which is manifest from the order sheets of

35

this Court. In fact the petition was filed on 17.3.1998 and

if the petitioners have not been able to obtain the order of

stay for a long period of 6 months this Court cannot grant

any further indulgence to the petitioners.”

Siddhartha Tubes v. Commissioner of Central Excise

[Madhya Pradesh High Court / 1999 (63) ECC 24 / Deepak

Verma J.]

45. High Courts have further held, in like circumstances, that

the conduct of the Executive invites the provisions of the

Contempt of Courts Act, 1971.

“In a Government which is ruled by law, there must be

complete awareness to carry out faithfully and

honestly the decisions rendered by courts of law after

effective adjudication. Then only will private

individuals, organisations and institutions learn to

respect the decisions of courts. In absence of such

attitude on the part of all concerned, chaotic conditions

might arise and the functions assigned to the courts of

law under the Constitution might be rendered a futile

exercise. It requires to be emphasised, in this

connection, that mere preferment of an appeal does

not automatically operate as a stay of the decision

under appeal and that till an application for stay is

moved and granted by the appellate court, or, in the

alternative, the court which rendered the decision is

moved and grants an interim stay of the decision

pending the preferment of an appeal and grant of stay

by the appellate court, the decision continues to be

operative. Indeed, non-compliance with the decision on

36

the mere ground that an appeal is contemplated to be

preferred or is actually preferred, and that, therefore,

the matter is sub judice, may amount to contempt of

Court punishable under the Contempt of Courts Act,

1971. The decision of the Supreme Court in

Baradakanta Mishra v. Bhimsen Dixit, places the

matter beyond dispute, doubt or debate as regards

this aspect.”

Hans Raj Dhir v. State of Himachal Pradesh [High Court of

Himachal Pradesh / 1985 CriLJ 1030 / P.D. Desai, C.J.

and H.S. Thakur, J.]

46. High Courts have further refused to extend equitable

remedies in such instances and have expressed that the

affected party must suffer the judgment of the Court below

and may only move the superior Court for expeditious

disposal of the matter.

“The appellant also submitted that since an appeal

was pending, the order of conviction was yet to

become final, and therefore, till the appeal is decided

on merit … cannot be enforced. In our opinion, the

aforesaid submission is not acceptable. Law is well

settled that mere filing of appeal does not operate as

stay of the order appealed against, unless there is a

specific provision of law to that effect…”

“…The appellant has rather passionately submitted

that disposal of the appeal before the Appellate Court

may take a long time and …for an uncertain or

indefinite period would not be in the interest of justice.

37

Unfortunately for the appellant, this is a piquant

situation, but this will not come to the aid of the

appellant…It is for the appellant to move the Appellate

Court for expeditious disposal of the appeal.”

Kaaruppan v. Dhanapalraj Chairman, Bar Council of Tamil

Nadu [(Madras High Court / MANU/TN/0003/2005 / P.K.

Misra and A.K. Rajan, JJ.]

47. That the petitioners are starved of an efficacious remedy to

preserve their fundamental rights under the circumstances

and have no alternative or effective remedy than to seek

intervention12 of this Court under Article 226 of the

Constitution.

48. That the cause of action in the instant petition is a matter

of paramount concern to the members of Petitioner 1.

Accordingly, Petitioner 1 retains a primary concern in

ensuring that the ‘Language Policy’ of Karnataka be not

enforced by the Respondents in a manner inconsistent

with the Full Bench Order.

49. That the petitioners have not filed, on the instant cause of

action, any other petition before this Hon’ble Court or

before any other Court of competent jurisdiction.

12 “Why is it that the Courts both in India and in America have taken an activist approach in upholding the civil liberties and rights of the citizens? In our opinion, this is because freedom and liberty is essential for progress, both economic and social. Without freedom to speak, freedom to write, freedom to think, freedom to experiment, freedom to criticize (including criticism of the Government) and freedom to dissent there can be no progress.Government of Andhra Pradesh v. P. Laxmi Devi [Supreme Court / AIR 2008 SC 1640 : (2008) 4 SCC 720 / H.K. Sema and Markandey Katju, JJ.]

38

50. That the Petitioners reasonably assert that the violation of

their fundamental rights by the conduct of Respondents

herein is such that the Relief sought herein offers an

adequate remedy under the circumstances.

51. That, under the circumstances, the petitioners seek

intervention of this Court under Article 226 of the

Constitution, amongst others, on the following:

GROUNDS

I. 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.

II. 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 void13

13 “Where a Statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend on it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be unconstitutional and which consequently has to be regarded as having never at any time been possessed of any legal force…The effect of the declaration that the Act is void should be notionally taken to be obliterated from the section for all intents and purposes”

39

and as of no legal effect by a Court of competent

jurisdiction. The proceedings that resulted in the Full

Bench Order were validly instituted and were brought

before an appropriate Court of competent jurisdiction – the

High Court. As such, the Respondents, by seeking to

enforce a G.O. that has since been obliterated from the

Statute Books are professing an authority that is not

merely non-existent but is one which severely conflicts

with the power14 conferred upon a High Court constituted

under Article 214 of the Constitution.

III. Respondent 3 is not a multipurpose agent of the

Government of Karnataka and 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 merit15 in the

argument that – because a High Court judgment is

Commentary on the CONSTITUTION OF INDIA – Durga Das Basu. 8th

Edition. Pg.699. Vol.114 “Judicial power of 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]15 “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 Constituion 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

40

appealed to the Supreme Court, the High Court judgment

cannot 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.

IV. Further, the DDPI, in performance of his statutory duties

is often sued by affected educational institutions by way of

Writ Petitions before this Hon’ble Court. The DDPI is

therefore exposed to the rules, procedures and the law

governing Court affairs. Further, the DDPI is certainly

expected to be aware of the binding nature of Orders of a

Court, of appellate procedures, the result of interim stays

and of the hierarchy involving the High Court and the

Supreme Court. Given that the DDPI is expected to have a

sound knowledge of basic matters concerning Court

Orders, the petitioners maintain that it is outrageous for

the DDPI to present a view that is both naïve and utterly

incomprehensible.

V. Further the State has not merely appealed to the 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 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

41

application for stay. Despite the same, the Supreme Court

merely directed formal ‘Notice’ to Respondents.

VI. The State has exceeded its authority in seeking to enforce

the language policy of the State when the operation of the

same has been removed by this Hon’ble Court. Having

failed to secure an interim stay upon the Full Bench Order,

Respondents have clearly disregarded the injunction

subsisting upon their conduct. Respondents should

therefore be restrained from enforcing the language policy

in respect of the petitioners’ educational institutions. The

Petitioners reasonably expect to succeed on issue of such

restraint.

VII. The Petitioners have no adequate remedy other than to

seek reversal of State action to preserve their

constitutional guarantee of a right to a valid occupation.

The refusal of the respondents to register ‘English Medium

Instruction’ in the petitioners’ schools clearly violates the

right of the Petitioners to engage in an occupation long

considered to be inherently virtuous and utilitarian and

perceived as for advancement of public good.

VIII. In terms of the Full Bench Order, the enforcement of the

‘language policy’ of the State in respect of the Petitioners

should be construed as a violation of the Petitioners’

fundamental rights enumerated in Articles 19(1)(a),

19(1)(g), 21 and 26 of our Constitution.

42

PRAYER

Under these circumstances, the Petitioners humbly pray

that this Hon’ble Court be pleased:

i. to issue a Writ of Prohibition or a Writ of any other

nature or description restraining Respondents from

enforcing the G.O. dated 29-Apr-1994 (Annexure G)

in a manner inconsistent with the Order and

Judgment dated 02-Jul-2008 of the Full Bench of

this Court in Writ Petition 14363 of 1994 and

connected petitions in respect of Petitioner 2 and

member institutions of petitioner 1 and therefore, to

quash the ‘Rejection Order’ dated 25-Feb-2009

issued by Respondent 3 (Annexure F ).

ii. to issue a Writ of Mandamus or a Writ of any other

nature or description directing Respondent 3 to

‘Register’ forthwith ‘English Medium of Instruction’ in

respect of ‘Sri Aurobindo Vidya Mandir’ established

and administered by Petitioner 2, Rajajinagar

Education Society.

iii. to issue any other order, direction or instruction to

secure any purpose or objective that this Hon’ble

Court deems fit under the circumstances of the case

in the interests of justice, equity and expediency.

43

K.V.DHANANJAY.




K.V.DHANANJAY.

No.296

Kamakshipalya

Magadi Main Road

Bangalore 560 079

IN THE HIGH COURT OF KARNATAKA


WRIT PETITION No. of 2009 (EDN. REG-P)

BetweenKarnataka Unaided Schools Management’s Association And Anr.

Petitioners

VERSUS

State of Karnataka And Others. Respondents

VERIFYING AFFIDAVIT

I, G.S.Sharma, Aged 83 years and President of Karnataka

Unaided Schools Management’s Association, a Registered

Society situated at No.9, Vanivilas Road, Visveswarapuram,

Bangalore 560 004 do hereby solemnly affirm and State on

Oath

1. That I am the petitioner in the above mentioned petition and as such, fully acquainted with the facts and circumstances of this case; hence, competent to swear this Affidavit for myself and for fellow petitioners as I am so instructed by all of them.

2. That I have read over the contents of the accompanying Synopsis And List of Dates – Page Nos. 1 to 8, Writ Petition- Page Nos. 9 to 43, paras 1 to 51, Grounds I to VIII, and I say that the same are true and correct to my knowledge, information, understanding and belief and are based on the records of the case.

3. That the Annexures to the petition are true copies of the respective originals.

4. That the contents of this Affidavit are true to the best of my knowledge, no part of it is false and nothing material has been concealed therefrom.

Verified at Bangalore on thisday of March, 2009

Identified by Me:

Advocate DEPONENT

Place: BangaloreDate: 09-Mar-2009

Language Conflict Writ Petition

Documents

Transcript of Language Conflict Writ Petition