IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.08.2007 CORAM THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE D.MURUGESAN W.P.Nos.33953, 7879 & 10661 of 2006 K.R.Ramaswamy @ Traffic Ramaswamy .. Petitioner in W.P.No.33953/06 Kanyakumari District Malayala Samajam (Reg.No.15/79) Malayala Bhavan Post Office Junction Kuzhithurai 629 163 Kanyakumari District rep.by its President Petitioner in K.Chandra Sekhara Pillai .. W.P.No.7879/06 Kanyakumari District Nair Service Society rep.by the President V.Sreekumaran Nair No.1-56 E, "Ushas" Christopher Nagar, Peruvila Vettoournimadam Post Nagercoil Petitioner in Kanyakumari District .. W.P.No.10661/06 -vs- State rep.by | Special Officer | Chief Minister's Special Cell | Government of Tamil Nadu | Chennai 600 009 | | Secretary | Education Department | Government of Tamil Nadu | Chennai 600 009 | | https://hcservices.ecourts.gov.in/hcservices/ The Director | Matriculation School Education | College Road, Chennai 600 006 | Tamil Language Academy | rep.by its President R.Gandhi | Senior Advocate | (R4 impleaded as per order dt. | 17.4.07 by the Hon'ble CJ/DMJ | Respondents 1 to 4 in MP.No.2/07 in WP 33953/06) |.. in W.P.No.33953/06 The State of Tamilnadu | rep.by Secretary to Government | Law Department | Fort St.George | Chennai 600 009 | | Secretary to Government | School Education Department | Fort St.George | Chennai 600 009 | | Director of School Education | College Road | Chennai 600 006 | | Director of Matriculation Schools | College Road | Chennai 600 006 | | Director of Elementary | School Education | College Road | Respondents 1 to 5 Chennai 600 006 |.. in W.P.No.7879/06 The State of Tamil Nadu rep.by its Law Secretary Law Department Fort St.George Respondent in Chennai 600 009 .. W.P.No.10661 of 2006 W.P.No.33953 of 2006 filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Mandamus, directing the respondents to make necessary changes in the G.O.186/F1/06 dated 17.06.06, the safe guard the minority languages speaking children fundamental rights as per the representation dated 17.7.06 and 5.8.06. W.P.No.7879 of 2006 filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Declaration, declaring Tamil Nadu Act No.13 of 2006 (The Tamil Nadu Tamil Learning Act, 2006) unconstitutional and null and void in so far as the petitioner is concerned. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.10661 of 2006 filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Declaration, declaring the Act No.13 of 2006 (learning of Tamil as one of the subjects in all schools in the State of Tamilnadu) published in Tamilnadu Government Gazette, Chennai dated 12.06.2006 as ultra vires the Constitution of India in so far as the petitioner is concerned. For Petitioners :: Mr.K.R.Ramaswamy @ Traffic Ramaswamy Petitioner in person in W.P.No.33953 of 2006 Mr.V.Raghavachari for Mr.V.Madhusudanan in W.P.Nos.7879 & 10661/06 For Respondents :: Mr.R.Viduthalai Advocate General assisted by Mr.M.Sekar Spl. Govt. Pleader (Edn.) and Mr.V.R.Thangavelu Government Advocate for the State Mr.R.Gandhi Senior Counsel as party-in-person for R4 in W.P.No.33953 of 2006 ORDER D.MURUGESAN, J. In order to ensure that all students studying in standards I to X in all schools in the State to learn Tamil as compulsory subject, the Government of Tamil Nadu, as a policy, enacted the Tamil Nadu Tamil Learning Act, 2006 (Act No.13 of 2006) (hereinafter referred to as the "Act"), which received the assent of the Governor on the 9th June, 2006, and published in the Tamil Nadu Government Gazette Extraordinary on 12th June, 2006. The relevant provisions of the "Act" read as follows:- Section 2(e) of the Act defines a "school" as meaning,-- (i) any Primary School, Middle School, High School or Higher Secondary School maintained by the State or Local Bodies; or (ii) any Primary School, Middle School, High School or Higher Secondary School established and administered or maintained by any private educational agency including minority school established and administered under clause (1) of Article 30 of the Constitution, whether receiving aid out of the State fund or not; or https://hcservices.ecourts.gov.in/hcservices/ (iii) any Nursery and Primary School, Matriculation School, Anglo-Indian School or Oriental School including minority school established and administered under clause (1) of Article 30 of the Constitution, whether receiving aid out of the State fund or not; or (iv) such other school as may be notified by the Government in this behalf. Explanation.--For the purpose of this clause,-- (i) Nursery and Primary School shall consist of standards L.K.G. to V; (ii) Primary School shall consist of standards I to V; (iii) Middle School shall consist of standards I to VIII or standards VI to VIII; (iv) High School shall consist of standards I to X or VI to X or IX and X; (v) Higher Secondary School shall consist of students I to XII, VI to XII or IX to XII. Section 3(1) Tamil shall be taught as a subject in standards I to X in all schools; in a phased manner, commencing from the academic year 2006- 2007 for standard I, from the academic year 2007-2008 for standards I and II and shall be extended upto X standard in a like manner. (2) For the purpose of sub-section (1), the pattern of education shall be as follows:- Part-I Tamil (Compulsory) Part-II English (Compulsory) Part-III Other Subjects (Mathematics, Science, Social Science, etc.) Part-IV Students who do not have either Tamil or English as their mother tongue can study their mother tongue as an optional subject. 2. Pursuant to the Act, the Director of Elementary Education issued the Circular in Na.Ka.No.18640/F1/06 dated 17.6.2006 directing all the District Chief Educational Officers, District Educational Officers, District Elementary Educational Officers, Inspectors of Matriculation Schools, Educational Officers of Anglo-Indian Schools, Educational Officers of Corporation Schools, Assistant Elementary Educational Officers and other Educational Officers to implement the policy decision of the Government in a phased manner from the academic year 2006-2007. 3. One Mr.K.R.Ramaswamy alias Traffic Ramaswamy has filed W.P.No.33953 of 2006 seeking for a direction to the respondents to make necessary changes in the proceedings of the Director of Elementary Education dated 17.06.06 in order to safe guard the interest of the minorities. Likewise, Kanyakumari District Malayala Samajam and Kanyakumari District https://hcservices.ecourts.gov.in/hcservices/ Nair Service Society have filed the W.P.Nos.7879 & 10661 of 2006 respectively seeking for issue of Writ of Declaration, declaring the Act is ultra vires of the Constitution of India. 4. In nutshell, the petitioners are challenging the provisions of the Act on the grounds viz., (i) that the Act is a colourable legislation intended with mala fide intention to take away the rights of linguistic minorities to use their mother tongue as the medium of instruction, which is in contravention of Article 29 of the Constitution; (ii) that the impugned Act curtails the unfettered right guaranteed on the minority institutions under Article 30 of the Constitution to establish and administer educational institutions of their choice. 5. We have heard Mr.K.R.Ramaswamy, petitioner in person, Mr.V.Raghavachari and Mr.V.Madhusudanan, learned counsel, Mr.R.Viduthalai, learned Advocate General for the State and Mr.R.Gandhi, learned Senior Counsel for the impleaded respondent. 6. Before we delve upon the grievance of the petitioners in W.P.Nos.7879 & 10661 of 2006, we are inclined to consider the grievance of the petitioner in W.P.NO.33953 of 2006. The said writ petition has been filed by one K.R.Ramaswamyt @ Traffic Ramaswamy in the public interest. He has approached this Court seeking for a direction to the respondents to make necessary changes in the Circular dated 17.6.2006 issued by the Director of Elementary Education in order to safeguard the interest of the minorities. In our considered view, such a relief cannot be ordered for more than one reason. Firstly, the Circular was issued on the basis of an enactment namely, the Tamil Nadu Tamil Learning Act, 2006 (Act No.13 of 2006) and the petitioner has not questioned the said enactment. Secondly, the petitioner has also not chosen to question the Circular, which was issued pursuant to the above enactment. Thirdly, this Court would not be within its jurisdiction to direct changes in the Circular that was issued in pursuance of an Act, as it would amount to issuance of a direction for amendment of the provisions of the Act. Hence, for this reason W.P.No.33953 of 2006 must fail. 7. So far as the other two writ petitions are concerned, having regard to the submissions as to the challenge to the impugned Act, the following grounds emerge:- (i) Whether by the impugned Act the right of the minorities guaranteed under Articles 29(1) & 30(1) of the Constitution of India to conserve the distinct language, script and culture of their own and to establish and administer educational institutions of their choice is infringed? (ii) Can the State, in its wisdom and as a matter of policy, make Tamil language a compulsory subject in all the schools? https://hcservices.ecourts.gov.in/hcservices/ (iii) If so, whether such policy would include the introduction of Tamil as compulsory subject in all schools from standard I onwards? (iv) Whether the Circular issued by the Director of Elementary Education is violative of Articles 14, 29(1) and 30 (1) of the Constitution of India? 8. The right of a citizen to practice any profession or to carry on any occupation, trade or business is guaranteed under Article 19(1)(g) of the Constitution. The said Article protects the right of all citizens including minorities to practice any profession or to carry on any occupation etc., and such right also includes a right to establish and administer educational institutions of their choice as well. However, the right guaranteed under Article 19(1)(g) is subject to Article 19(6), which contemplates that nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. In other words, in terms of the said Article 19(6), the State is empowered to impose reasonable restrictions by law. 9. Article 29(1) guarantees certain cherished rights of the minorities concerning cultural and educational rights, their language, culture and religion. Article 30(1) contemplates a right on all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. The said Article is basically intended to instill confidence in minorities against any executive or legislative encroachment on their right to establish and administer educational institutions of their choice. Though it is styled as a right, it is more in the nature of protection for minorities. The said Article was enacted as a guarantee that the educational institutions established by minorities should enjoy protection from such legislation which may infringe their rights as such. In effect, it is an additional protection guaranteed to the minorities, apart from the right under Article 19(1)(g). 10. While fundamental right under Article 19(1)(g) is subject to the reasonable restrictions that could be imposed by the State by virtue of the power under Article 19(6), the fundamental right under Articles 29 and 30(1) is subject to the power of the State Government to make regulations to regulate the administration of the institutions. 11. The right guaranteed to religious and linguistic minorities by Article 30(1) is two fold namely, (i) to establish and (ii) to administer educational institutions of their choice. The administration of the educational institutions has certain limitation as it is subject to regulation by the State. One of the questions as to whether, at the guise of establishing and administering the educational institutions, the minorities could claim any exclusive right to admit the students belonging to a particular minority https://hcservices.ecourts.gov.in/hcservices/ community came up for consideration before the Supreme Court in re: Kerala Education Bill, 1957, AIR 1958 SC 956. While considering the scope of Article 30(1), Chief Justice S.R.Das observed as follows:- "The real import of Art.29(2) and Art.30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Art.30(1) of the Constitution." "We have already observed that Article 30(1) gives two rights to the minorities (1) to establish, and (2) to administer educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teacher possessing any semblance of qualification and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason then that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided." 12. In Rev.Sidhajbhai, Sabhai v. State of Gujarat, AIR 1963 SC 540, speaking for the Bench, Shah, J., explained the extent of the regulatory power of the State in the following words:- "Unlike Art.19, the fundamental freedom under clause (1) of Art.30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art.19 may be subjected to. All minorities, linguistic or religious have by Art.30(1) an absolute right to establish and administer educational institutions of their choice; https://hcservices.ecourts.gov.in/hcservices/ and any law or executive direction which seeks to infringe the substance of that right under Art.30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom (sic right) is to establish and to administer educational institutions; it is a right to establish and administer what are in truth educational institutions - institutions which cater to the educational needs of the citizens, or sections thereof. Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substances of the right which is guaranteed; they secure the functioning of the institutions, in matters educational." The Supreme Court has thus recognised the right of the State to prescribe reasonable regulations to ensure the excellence and to make regulations in the true interests of efficiency or instruction. 13. Whether such power of the State to make regulations could be extended to a policy to make Tamil as compulsory subject in all the schools from standard I onwards is the question to be considered. In N.Ammad v. Emjay High School, AIR 1999 SC 50, the Supreme Court while considering this aspect has stated as follows:- "Though the right guaranteed under Article 30(1) to establish and administer is absolute, such right will not preclude the State to make regulations in the true interests of efficiency or instruction without offending the right of the minority students to learn through their mother tongue as well, as such regulations are not restrictions on the right guaranteed by the Constitution on the minorities. However, the regulations must satisfy the dual tests namely, the test of reasonableness and that it does not result in minority educational institution losing their character." 14. The Supreme Court in Bihar State Madarasa Education Board, Patna v. Managing Committee of Madarasa Hanfia Arabic College, Jamalia, (1990) 1 SCC 428, has held as follows:- "This Court has all along held that though the minorities have right to establish and administer educational institution of their own choice but they https://hcservices.ecourts.gov.in/hcservices/ have no right to maladminister and the State has power to regulate management and administration of such institutions in the interest of educational need and discipline of the institution. Such regulation may have indirect effect on the absolute right of minorities but that would not violate Art.30 (1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions.......Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management....." 15. The power of the State to make provisions for the regional language as one of the medium of instruction has been recognised by the Supreme Court in the judgment in English Medium Students Parents Association v. State of Karnataka and others, (1994) 1 SCC 550. In that case, under the perspective of promotion of Kannada, the Government of Karnataka appointed a Committee of six persons with Dr.V.K.Gokak as the Chairman and referred three questions, out of which one question was "would it be proper to have Kannada as a compulsory subject as per the three language formula and should the option of selecting the remaining two languages be left to the students themselves?" In its report, the Committee recommended that Kannada should be introduced as a compulsory subject for all children from III standard and thereafter, Kannada should be the sole first language for the Higher Secondary Schools i.e., VIII, IX and X standards. Based on the above report, the Government of Karnataka directed Kannada or mother tongue as first language from standard III from the academic year 1982- 83. Ultimately, the issue as to whether the State Government could issue such an order making Kannada as a compulsory subject from standard III came up for consideration before the Supreme Court. The challenge was that the Government Order was violative of Articles 29 & 30 of the Constitution and the infringement of the right guaranteed under Article 350-A was apparent on the face of the Government Order as it prevented linguistic minority group to avail the opportunity of choices of languages. On consideration of the issue, the Supreme Court has observed as follows:- "20. All educational experts are uniformly of the opinion that pupils should begin their schooling through the medium of their mother tongue. There is great reason and justice behind this. Where the tender minds of the children are subject to an alien medium the learning process becomes unnatural. It inflicts a cruel strain on the children which makes the entire transaction mechanical. Besides, the educational process becomes artificial and torturous. The basic knowledge can easily be garnered through the mother tongue. The introduction of a foreign language https://hcservices.ecourts.gov.in/hcservices/ tends to threaten to atrophy the development of mother tongue. When the pupil comes of age and reaches the Vth standard level, the second language is introduced. The child who has not taken Kannada as a first language is required to take it as a second language. At the secondary stage the three language formula is introduced. However, in cases of non-Kannada speaking students grace marks upto 15 are awarded. Certainly, it cannot be contended that a student studying in a school from Karnataka need not know the regional language. It should be the endeavour of every State to promote the regional language of that State. In fact, the Government of Karnataka has done commendably well in passing this GO. Therefore, to contend that the imposition of study of Kannada throws an undue burden on the students is untenable. Again to quote Mahatma Gandhi: "The medium of instruction should be altered at once and at any cost, the provincial languages being given their rightful place. I would prefer temporary chaos in higher education to the criminal waste that is daily accumulating." 23. As rightly contended by the learned Advocate General where the State by means of the impugned GO desires to bring about academic discipline as a regulatory measure it is a matter of policy. The State knows how best to implement the language policy. It is not for the Court to interfere. In Hindi Hitrakshak Samiti v. Union of India, (1990) 2 SCC 352, this Court laid down as under: "It may be that Hindi or other regional languages are more appropriate medium of imparting education to very many and it may be appropriate and proper to hold the examinations, entrance or otherwise, in any particular regional or Hindi language, or it may be that Hindi or other regional language because of development of that language, is not yet appropriate medium to transmute or test the knowledge or capacity that could be had in medical and dental disciplines. It is a matter of formulation of policy by the State or educational authorities in charge of any particular situation. Where the existence of a fundamental right has to be established by acceptance of a particular policy or https://hcservices.ecourts.gov.in/hcservices/ a course of action for which there is no legal compulsion or statutory imperative, and on which there are divergent views, the same cannot be sought to be enforced by Article 32 of the Constitution. Article 32 of the Constitution cannot be a means to indicate policy preference." Having held so, the Supreme Court ultimately found that the introduction of Kannada as a compulsory subject was a matter of policy. Holding so, the Court declined to interfere and the challenge to the Government Order was repelled. 16. Again a similar question came up for consideration before the Supreme Court in Usha Mehta and others v. State of Maharashtra and others, (2004) 6 SCC 264. In that case, the State of Maharashtra directed the Marathi language study as compulsory throughout the schools in the State. The said decision of the Government was questioned by English medium schools run by Gujarathi linguistic minorities on the ground that they were compelled to teach four languages namely, Hindi, English, Marathi and their mother tongue Gujarathi. The challenge was again on the ground of infringement of the fundamental rights guaranteed under Article 29(1) and 30(1) as also Article 19(1)(a) as well as Articles 19(1)(e), (g) and 21 of the Constitution. While considering the power of the State to impose reasonable restrictions, the Supreme Court in paragraph 10 has observed as follows:- "10. In the light of the above discussed cases, it is clear that the State can impose reasonable regulations on the institutions covering (sic) Article 30 for protecting the larger interest of the State and the nation. The 'choice' that could be exercised by the minority community or group is subject to such reasonable regulations imposed by the State. While imposing regulations, the State shall be cautious not to destroy the minority character of institutions. It is not the case of the petitioners herein that the respondents prevented them from teaching Gujarati language. On the other hand, they are only challenging the compulsory imposition of Marathi language for students and asking for a right "not to learn" Marathi language while living in the State of Maharashtra. The regulation in this case imposed by the State of Maharashtra upon the linguistic minority right is to make Marathi language a compulsory course in school syllabi. The issue for resolution here is to find whether this action is reasonable or not. The impugned policy decision was taken by keeping in view the larger interest of the State, because the official and common https://hcservices.ecourts.gov.in/hcservices/ business are carried on in that State in Marathi language. A proper understanding of Marathi language is necessary for easily carrying out the day-to-day affairs of the people living in the State of Maharashtra and also for proper carrying out of daily administration. Hence the regulation imposed by the State of Maharashtra upon the linguistic minorities to teach its regional language is only a reasonable one. This Court ruled that the right of minorities to establish and administer educational institutions of "their choice" under Article 30(1) read with Article 29(1) would include the right to have choice of medium of instruction. (See generally the Constitution Bench decisions in D.A.V. College v. State of Punjab and D.A.V. College v. State of Punjab.) But this exercise