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

BANGALORE District

No.296, Kamakshipalya Magadi Main Road Bangalore 560 079

Between Karnataka Unaided Schools Management’s Assn. And Anr.

Roll.No.KAR/659/02

And State of Karnataka And Ors.

Sl.No.

Description of Paper Presented

1

On the Memo of Writ Petition

2

On the Memo of Appeal

3

On Vakalath

4

On Certified Copies

5

On I.A.No…………for

6

On Process Fee

7

On Copy Application

8

………………..

9

………………...

10

…………………

Court Fee Affixed On the Paper 200

Total

Number of Copies Furnished

200

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

IN THE HIGH COURT OF KARNATAKA AT BANGALORE ORIGINAL JURISDICTION WRIT PETITION NO.

/2009 (EDN. REG-P)

Between: Karnataka Unaided Schools

Petitioners

Management’s Association And Anr AND Respondents

State of Karnataka And Ors.

INDEX Sl.No.

Particulars

Pages Nos.

1.

Synopsis And List of Dates

1-8

2.

Memorandum of Writ Petition

9-43

Statement of Facts

09-38

Grounds

38-41

Prayer

42

3.

Verifying Affidavit of Petitioner 1.

44

4

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

45

5

Annexure B Certificate of Registration of Petitioner 2 Society dated 26-Jul-1967

46-47

6

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

48-52

Education Act, 1983, established and administered by Petitioner 2 7

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

55-59

9

Annexure F Rejection 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 G Language 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 H Order 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 Date: 09-Mar-2009

Address for Service of Notice: K.V.DHANANJAY. No.296 Kamakshipalya Magadi Main Road Bangalore 560 079

Roll No.KAR/659/2002 ADVOCATE FOR PETITIONERS

1

IN THE HIGH COURT OF KARNATAKA ORIGINAL JURISDICTION WRIT PETITION No.

of 2009 (EDN. REG-P)

Between Karnataka 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 educational

more

than

a

thousand

institutions

in

the

State,

unaided 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

institution

of

administer one's

choice.

an

educational

'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 charitable

and

maintain

purposes

an

which

institution for 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

denomination,

citizen, and

every

every

religious

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. Bangalore Date: 09-Mar-2009

Address for Service of Notice: K.V.DHANANJAY. No.296 Kamakshipalya Magadi Main Road Bangalore 560 079

Roll No.KAR/659/2002 ADVOCATE FOR PETITIONERS

9 IN THE HIGH COURT OF KARNATAKA AT BANGALORE ORIGINAL JURISDICTION WRIT PETITION NO

/2009 (EDN. REG-P)

Between: 1

Karnataka Unaided Schools Management’s Association A Registered Society Represented by its President G.S.Sharma Age 83 years No.9, V.V.Road V.V.Puram Bangalore 560 004

2

Rajajinagar Education Society A Registered Society Represented by its Secretary M.Sitarambhat Gudi Age 77 Years No.6/C, 5th Main 2nd Stage, Dr.M.C.Modi Road Malakshmipuram Bangalore 560 086

Petitioners

AND 1

State of Karnataka Represented by its Principal Secretary Primary and Secondary Education Department M.S.Building Bangalore 560 001

2

Commissioner for Public Instruction Department of Education Nrupatunga Road

Respondents

10 Bangalore 560 001 3

Deputy Director of Public Instruction Bangalore 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

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”. 1

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-Jan1995. 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.

‘for the purpose of providing ‘better organisation, development, discipline and control of the educational institutions in the State’. - PREMABLE 2

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.

3

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. 4

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 22Oct-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. Section 3(2) of the Act lays down that: The State Government may towards that enda) 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 grantin-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

6

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

7

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 25Feb-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-Apr1994 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-Jul2008. 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

educational

field,

constitutional

as

the

opinion

issues,

opinion of

concept

of

experts

statesmen, of

rights,

in

legal in

the and

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

FILED BY:

(B.MANOHAR)

(SANJAY R HEGDE) ADVOCATE

ADDL. GOVERNMENT

SUPREME COURT

ADVOCATE ADVOCATE GENERAL’S OFFICE

NEW DELHI

HIGH COURT BUILDINGS BANGALORE 560 001

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 19Nov-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 31-102008, 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. 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.

11

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.1 “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 14

“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] “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

15

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 subsisting

upon

clearly their

disregarded

conduct.

the injunction

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

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

Articles

19(1)(a),

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. Bangalore Date: 09-Mar-2009

Address for Service of Notice: K.V.DHANANJAY. No.296 Kamakshipalya Magadi Main Road Bangalore 560 079

Roll No.KAR/659/2002 ADVOCATE FOR PETITIONERS

IN THE HIGH COURT OF KARNATAKA ORIGINAL JURISDICTION WRIT PETITION No.

of 2009 (EDN. REG-P)

Between Karnataka 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 this day of March, 2009 Identified by Me: Advocate Place: Bangalore Date: 09-Mar-2009

DEPONENT