In the last two
posts (Part I and Part II), we discussed three of the five questions framed by the court in the case
of State of Karnataka v. Associated Management of (Government Recognised
– Unaided – English Medium) Primary & Secondary Schools & Others.
The five questions framed by the court are as follows:
1. What does
Mother tongue mean? If it is referred to as the language in which the child is
comfortable with, then who will decide the same?
2. Whether a
student or a parent or a citizen has a right to choose a medium of instruction
at primary stage?
3. Does the
imposition of mother tongue in any way affect the fundamental rights under
Article 14, 19, 29 and 30 of the Constitution?
4. Whether
the Government recognized schools are inclusive of both government aided
schools and private & unaided schools?
5. Whether
the State can by virtue of Article 350-A of the Constitution compel the
linguistic minorities to choose their mother tongue only as medium of
instruction in primary schools?
In the present
post, we will discuss the manner in which the court answered the fourth and the
fifth question.
Whether the
Government recognized schools are inclusive of both government-aided schools
and private & unaided schools?
In Unni
Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., the
court held that the right to establish an educational institution does not
carry with it the right to recognition or the right to affiliation and that
recognition and affiliation are essential for meaningful exercise of the right
to establish and administer educational institutions.
Thus “it is
open to a person to establish an educational institution, admit students,
impart education, conduct examination and award certificates but the
educational institution has no right to insist that the certificates or degrees
awarded by such institution should be recognized by the State and therefore the
institution has to seek such recognition or affiliation from the appropriate
agency”.
Hence, in the
present case, the court held that “all schools, whether they are established
by the Government or whether they are aided by the Government or whether they
are not aided by the Government, require recognition to be granted in
accordance of the provisions of the appropriate Act or Government order”.
Accordingly, Government
recognized schools will include both Government Aided Schools and Unaided Schools
which have been granted recognition.
Whether the
State can by virtue of Article 350-A of the Constitution compel the linguistic
minorities to choose their mother tongue only as medium of instruction in
primary schools?
While answering
the first question, the court noticed that under Article 350A, it is provided
that it shall be the endeavour of every State and of every local authority
within the State to provide adequate facilities for instruction in the mother
tongue at the primary stage of education to children belonging to linguistic
minority groups.
During the
course of answering the previous questions, the court also held that under Article
30(1) of the Constitution, a linguistic minority has the right to choose the
medium of instruction in which education will be imparted in the primary stages
of the school which it has established.
Hence, Article
350A cannot compel a linguistic minority to choose its mother tongue only as a
medium of instruction in a primary school established by it in violation of
this fundamental right under Article 30(1). This is also because both the
constitutional provisions have to be constructed harmoniously. On the one hand
there is a fundamental right [Article 30 (1)] and on the other hand,
there is a provision that grants power to the state to promote Mother Tongue of
a linguistic minority. However, this promotion of mother tongue cannot act in
detriment to its own linguistic minority. Also, fundamental rights clearly have
an upper hand in such situations. Hence, the court rightly decided that in the
garb of Article 350A, the state cannot compel a linguistic minority to
forcefully choose mother tongue only as a medium of instruction in primary
education.
In the next
post, I will give my opinion on this case.
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