By Soumik Chakraborty
Editor’s Note: They impose certain obligations on the State to take affirmative action to establish a welfare State. These principles give directions to the functionaries of the State, the manner in which the Constitutional vision has to be achieved. One of the important directives is the duty of the State to provide free and compulsory education for all children until they complete the age of 14 years.
The Indian Constitution is a social document and the supreme law of the land. The founding fathers of the Constitution have incorporated a well designed constitutional manifesto under Part-IV of the Constitution to achieve socio-economic Justice. The Directive Principles of State Policy are the principles of good governance.
Education is the primary vehicle for human, economic and social development, profiting both the individual and society. The Supreme Court in Mohini Jain[i] and Unnikrishnan[ii] cases recognized the right to education is an implied fundamental right. According to the court, the education has proximate relationship with life, protection of environment, eradication of untouchability, and other related rights. The National Commission on review of the working of the Constitution has also endorsed the similar view. As a result the parliament inserted Article 21-A to the Constitution by the 86th Constitutional amendment in 2002. This amendment also introduced new fundamental duty on parents to provide education to their children under Article 51-A to take affirmative action to full-fill the Constitutional mandate, the Parliament passed the Right to Education Act, 2009 with effect from April 1st 2010. The Act deals with various facets like appointment of teachers, standards, curriculum, infrastructure, community participation and responsibility of the State to provide primary education etc.
According to Section 3 of The Right of Children to Free and Compulsory Education Act, 2009, “Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education.” Sections 8 and 9 of the same Act provides for certain duties of appropriate Government and local authority to be achieved viz., provide free and compulsory elementary education to every child, ensure that the child belonging to weaker section and the child belong to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds, ensure timely prescribing curriculum and courses of study for elementary education.
In a recent Supreme Court judgement in 2009, it was held by the then Chief Justice of India, S.H. Kapadia that,
“By judicial decisions, right to education has been read into right to life in Article 21. A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1) (a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission.” It was also held that, “From the scheme of Article 21A and the 2009 Act, it is clear that the primary obligation is of the State to provide for free and compulsory education to children between the age of 6 and 14 years and, particularly, to children who are likely to be prevented from pursuing and completing the elementary education due to inability to afford fees or charges.”
Two key aspects come into perspective while discussing the issue of Free and Compulsory Education. First, whether education should be made “compulsory” even when the medium of instruction is in the mother tongue of the child, secondly, whether parents have a right of choice under Article 21 to decide the medium of instruction of education of the child. In a number of cases especially in the case of Associated Management of Primary and Secondary Schools in Karnataka v. State of Karnataka[iii], it was attempted to make the mother tongue or local language as the medium of instruction for primary education with the view that it would be easier for children to follow the curriculum when it is explained to them in a language that is probably spoken in their homes.
In the recent case of State of Karnataka v Associated Management of Primary and Secondary Schools[iv] that has come up for appeal before a Constitutional bench of the Supreme Court comprising of Justice P. Sathasivam and Justice Ranjan Gogoi, the following issues have been raised to be decided:
(i) What does Mother tongue mean? If it referred to as the language in which the child is comfortable with, then who will decide the same?
(ii) Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?
(iii) Does the imposition of mother tongue in any way affects the fundamental rights under Article 14, 19, 29 and 30 of the Constitution?
(iv) Whether the Government recognized schools are inclusive of both government-aided schools and private & unaided schools?
(v) 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?
Mother tongue has been defined by the Oxford Dictionary as the language which a person has grown up speaking from early childhood and by Merriam-Webster as the language one learns to speak first. Native language can be defined as the primary language of a community. Community can be defined as a group of people living in the same place or having a particular characteristic in common. Two factors need to be determined while deciding medium of instruction:
- If the child is the native of the region but has grown up in a different state and is therefore uncomfortable with the medium of instruction
- If the child is not a native of the region but grows up there and may inherently be uncomfortable with the medium of instruction.
In both cases the language the child has grown up speaking is a language other than the native language due to exposure at home or with company. Therefore the native language in either case is not equal to the mother tongue. Hence enforcing the native language and not the mother tongue on such children would be a hindrance to them instead of a boon.
In Associated Managements of Primary and Secondary Schools in Karnataka v. State of Karnataka,[v] the Karnataka High Court had come to the conclusion that the right to education was a fundamental right, being a species of the right to life flowing from Article 21 of the Constitution. Owing to Article 21-A, right to free and compulsory primary education was a fundamental right guaranteed to all children between the ages of six and fourteen. The right to choose a medium of instruction was 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. Regarding this issue the court held that,
“Freedom of individual development is the basis of democracy. The primary purpose of education is to provide him with the widest opportunity to develop his potentials to the fullest. Right to freedom of speech and expression is a right one gets by birth. It is a basic human right and a natural right. It is basic and indivisible from a democratic polity. It is implicit in such a right, the right to choose the medium of instruction.
The medium of instruction is one aspect of the freedom of speech and expression. The freedom of speech and expression includes right to receive and acquire information and to disseminate it. It also includes right to educate, right to be educated, right to inform and right to be informed and entertained. The choice must be of the student and the parent. The State’s duty is only to provide and create an atmosphere, where the child can have education in a medium of its choice. It cannot compel the student to choose a particular medium of instruction.”
This stand adopted by the court was reiterated in the cases of Daffodils English School v. State of Karnataka as well as in State of Bombay v. Bombay Education Society.[vi] In the case of Daffodils English School v. State of Karnataka,[vii] the court emphasised that a child could not be compelled to have primary education in his mother tongue or the official language of the State. The choice of medium of instruction was that of the child and it ought to be left to the parents of the child. It was the element of compulsion that was frowned upon as the same offended the fundamental right guaranteed to the citizens of this country. The golden thread that ran through the constitution was the concept of Freedom and the same could not be compromised to the protean concept of ‘state necessity’, as was conceived by the rulers of the day.
The full bench of the Karnataka High Court in Associated Management of Primary and Secondary Schools v. The State of Karnataka[viii] clarified that the State could make primary education compulsory and choose the medium of instruction of its choice in the schools that were run or aided by the State. But it could not compel the child to have primary education in the mother tongue or the official language of the State. The choice of medium of instruction was that of the child and it ought to be left to the parents of the child. It was the element of compulsion that was frowned upon. It was arbitrary and offended the fundamental rights guaranteed to the citizens of the country. Except in the manner provided in the constitution and the law declared by the apex Court, the said rights could not be abridged or denied.
The Full Bench of the Gujarat High Court in the case of Shri Krishna Ranganath Mudholkar v. Gujarat University,[ix] held that it could not be denied that parents were entitled to direct the education of their children in the manner they considered best suited, thereby guiding their future prospects. When this decision was challenged in the Supreme Court, the appeal was dismissed. Similarly, the court in the case of State of Karnataka v. Noble Saint Education Society,[x] notably recognised the right of parents to have the primary education of their children in a school and language of their choice.
In the case of Tamil & English Schools v. The State of Tamil Nadu,[xi] the policy of compelling the adoption of mother tongue as the medium of instruction was deemed to be violative of Art 14. It handicapped children who were not well-versed with their mother tongue by placing them on par with others.
Medium of instruction is a species of right to information. Therefore, the right to medium of instruction of one’s choice is implicit in the freedom of speech and expression. As this right is conferred on all citizens under Article 19(1) (a), the said right is also that of the parents of the child, who are interested in educating their child and on whom a fundamental duty is cast under Article 51A (k), which provides that it shall be the duty of every citizen of India, who is a parent or guardian to provide opportunities for the education of his child between the ages of six and fourteen.
Medium of instruction was recognised as an intrinsic aspect of the right to freedom of speech and expression in the case of Sahyadri Education Trust v. State of Karnataka,[xii] as well.
As was pointed out by the Karnataka High Court in General Secretary, Linguistic v. State Of Karnataka And Anr,[xiii] it is universally recognised that parents have been conferred the right to have the primary education of their children in the school and language of their choice. In fact, in the case of Tamil & English Schools v. State Of Tamil Nadu,[xiv] the Madras High Court made a reference to Article 26 (3) of the Universal Declaration of Human Rights, to which India was a signatory. The said Article recognised the prior right of parents to choose the kind of education that was to be given to their children. This was interpreted as incorporating the right to choose a medium of instruction as well.
In St. Xavier’s College v. State Of Gujarat,[xv] the Supreme Court clarified that a child was not a mere creature of the State. Those who nurtured him and directed his destiny had the right coupled with the high duty to recognize and prepare him for additional obligations. The parental right in the matter of education was the very pivotal point of a democratic system.
In State of Karnataka v. AlIman Social and Rural Education,[xvi] the court observed that the right to choose a medium of instruction was implicit in the right to education. It was a fundamental right of the parent as well as the child to choose the medium of instruction even in primary schools.
Similarly, the right of a parent was upheld in the case of Shri Krishna Rangnath Mudholkar v. Gujarat University,[xvii] wherein it was elucidated by the court that parents had the liberty in law to educate their son/daughter in the manner they thought best. This was true even if such a right did not arise from a statute or a contract. In Gen Secretary L.M.P. Committee v. State of Karnataka,[xviii] it was categorically stated by the High Court that primary education must be in the mother-tongue, only if that happens to be the choice of the parents.
Under Article 13(3) of the International Covenant on Economic, Social and Cultural Rights, “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.”
While defining the nature of the relationship between the parent and the State and also defining the scope of compulsion, the law should address whether a child should be compelled to attend a government school where the medium of instruction is completely alien to the child. Alternatively, the law should examine whether the right to education includes the right to be educated in a manner that is not alien to the child, i.e., where language is not a barrier to education. It is pertinent to note that the UN Special Rapporteur has discussed language as a barrier while examining the State’s duty to make education ‘acceptable’.[xix]
In the Tenth Meeting of the Joint Expert Group UNESCO (CR)/ECOSOC (CESCR) on the Monitoring of the Right to Education, it was emphasized that the principle of non-discrimination, enshrined in the UNESCO Convention against Discrimination in Education and the International Covenant on Economic, Social and Cultural Rights, is a key to address language issues in education from a legal perspective; it is a legal obligation of Member States to respect the principle of equality of opportunities, andnot to discriminate on the basis of language in the public education system.[xx] The Joint Expert Group highlighted the recommendation that “School language regimes for the initial stages of education in State schools should ideally employ the language of the child as the predominant medium of instruction, with a gradual introduction of the State language or dominant local language, if different from that of the child, at a later stage, where possible by bilingual teachers sensitive to the cultural backgrounds of minority children.”[xxi]
The European Court of Human Rights, in the Belgian Linguistic Case,[xxii] held that non-provision of education in a particular language of instruction does not amount to discrimination based on language.[xxiii] However, given the extent of migration and diversity in language in the Indian context, language may be termed as barrier to school education.[xxiv] Therefore, in order to make school education an effective right, the law should necessarily address the language issue in such a manner that it enables all children to attend schools and participate meaningfully.
Article 350A of the Constitution states that “It shall be the endeavor of the 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; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities” This is essence is a Directive Principle even though not contained in Part IV of the Constitution as it begins with the phrase, “It shall be the endeavor of the State…”. In pursuant to the mandate of this Article the State has to provide facilities for instruction in mother tongue but cannot create an element of compulsion. The keyword here is “endeavor” which means to aspire or attempt.
In Associated Management of Primary and Secondary Schools in Karnataka v. State of Karnataka,[xxv]it was held that “Compelling children studying in non-aided Government recognized schools to have primary education only in mother tongue or the regional language is violative of Arts. 19(1) (g), 26 and 30(1) of the Constitution and also that the State cannot step in and arrogate to itself the power to decide as to the language in which the children should have their primary education. Therefore, it is a fundamental right of the parent and child to choose the medium of instruction even in primary school. The police power of the State to determine the medium of instruction must yield to the fundamental right of the parent and the child.”
In Usha Mehta and Others v. State of Maharashtra and Others,[xxvi] it was held that if there is an element of compulsion in the Government policy, which infringes the fundamental rights guaranteed to the citizens of this country under the Indian Constitution, such policy is void and the fundamental rights have to prevail over such governmental policy. And also, in the absence of such compulsion, the courts should not interfere with the policy decision of the Government. Hence even while pursuing the mandate of Article 350A, and formulating policies, the State cannot infringe the Fundamental Rights of citizens. In Hindi Hitrakshak Samiti v. Union of India,[xxvii] it was held that the policy of State would be unconstitutional if it prescribed Hindi or any other regional language to be the sole medium of instruction at the primary level.
Article 21A of the Constitution states that “the state shall provide free and compulsory education to all children of the age of six to fourteen in such manner as the State may, by law determine.”
While discussing any approach to human rights by a state or protection of an individual’s fundamental rights, the human rights claims of rights-holders and the corresponding obligations of duty-bearers should be outlined.[xxviii] It needs to be kept in mind the range of relationships and spaces within and outside the school education system that impact a child’s participation in school education. At least the following four relationships may be used as a starting point for an inquiry regarding minimum entitlements – “State-child”, “child-parent”, “State-parent” and “State-community-child-parent”.[xxix] The law should be very clear on whether each of these relationships will be regulated and the scope of such regulation.[xxx]
According to the framework developed by the UN Special Rapporteur on Right to Education, and subsequently adopted by the CESCR in its General Comment on Right to Education,[xxxi] the State has four duties, namely, the duties to make schools ‘available’, ‘accessible’, ‘acceptable’ and ‘adaptable’.[xxxii] Further, the State should also make public schools ‘accessible’ by ensuring that they are free of cost[xxxiii] and free from discriminatory practices.[xxxiv] Right to acceptability in education obliges the State to ensure that the curriculum is acceptable to parents and children; that language does not form a barrier to education; and that schools are ‘child-friendly’.[xxxv] Adaptability imposes on the State the duty to make the content flexible enough to adapt to the changing needs of students within their cultural settings.[xxxvi]
The CESCR has tried to clarify the meaning of “primary education.” The Committee has stated that primary education is that which caters to the “basic learning needs of the children.”[xxxvii] “Basic learning needs” has been defined in Article 1 of the World Declaration on Education For All as: “essential learning tools (such as literacy, oral expression, numeracy, and problem solving) and the basic learning content (such as knowledge, skills, values, and attitudes) required by human beings to be able to survive, to develop their full capacities, to live and work in dignity, to participate fully in development, to improve the quality of their lives, to make informed decisions, and to continue learning”. It not only refers to formal education but also encompasses early childhood education.[xxxviii]
The CESCR has also endorsed the view that “primary education” is only a component of “basic education” It has also stated that technical and vocational education is not limited to any particular level of education and that it forms an “integral element” of all levels of education.
The success of any rights-based model seeking to implement the right to education would depend upon the realization of other rights of a child. Therefore, it becomes imperative to strengthen the implementation of allied rights through non-coercive means.
In the words of the National Knowledge Commission, “…it (the right to education) cannot be dependent upon which state a citizen lives in…”[xxxix] Therefore, there exists a prima facie case for the creation of uniform standards across India for ensuring that children are entitled to the same guarantees and core non-negotiable minima. In other words, there must be “equitable” education.
Arguments may also be made in favor of the State by justifying the State policies as being measures taken to realize the mandate of Welfare State as enshrined in the Preamble to our Constitution. Jeremy Bentham’s Utilitarian theory and Greatest Happiness Principle has enshrined that the State should seek to bringthe gthe reatest happiness to the greatest number of people. In pursuance of the mandate of Welfare State, ,the State needs to make policies to enforce the rights of the people by providing them with facilities including compulsory education through any means. Steps taken in pursuit of this cannot be considered to be Draconian in nature and litigants should not seek the shelter of Article 32 and Article 226 unnecessarily and impede the developmental initiatives taken by the State.
In the case of English Medium Students Parents v. State Of Karnataka[xl], the apex court categorically stated that when the State, by means of a government order, 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. It also placed emphasis on the fact that all experts were unanimous in their opinion that children should begin their schooling through the medium of mother tongue and that there were great reason and logic behind this. When the tender minds of the children were subjected to an alien medium, the learning process would become unnatural. It would inflict cruel strain on the children, besides rendering the educational process artificial and torturous.
In General Secretary Linguistics Minorities Protection Committee v. State of Karnataka,[xli] the Karnataka High Court elaborated that when Article 45 is read with Article 350A, it indicates that the Constitution does not empower the State government to thrust the language of the majority as the medium of instruction for children belonging to linguistic minority groups at the primary stage. Specific care is required to ensure that such children are at their primary stage of education taught in their mother tongue.
Therefore, when the Government in the interest of the student and in the discharge of its constitutional obligations, formulates a policy prescribing that children from standards 1 to 5 shall study in their mother tongue, it does not violate any constitutional provision nor is it against the interest of the child or the public at large.
The Preamble and the Directive Principles of State Policy make it amply clear the goal of the nation is a welfare and socialist state through democratic means. Article 38(1) of the Constitution reads: “The state shall strive to promote the welfare the people by securing and protecting as effectively as it may, a social order in which justice-social economic and political-shall pervade all institutions of national life.” provides a broad framework for the establishment of the welfare state ideal as held in Air India Statutory Corporation v United Labour Union.[xlii]
Article 41 of the Constitution titled “Right to work, to education and to public assistance in certain cases” states that “the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” This article read with Article 21A and Article 350A imposes a duty on the State to make laws for the implementation of mother tongue as a medium of instruction on the child and enforce the mandate of Free and Compulsory Education as the State knows best as to what are the rights of a child. Moreover ,as per the theory of Utilitarianism forwarded by Jeremy Bentham, the State needs to formulate policies to bring the greatest happiness to the greatest number of people. By this principle, the state should seek to enforce the rights of the many over the rights of the few.
Article 21A has a two-fold interpretation. It is not only a fundamental right as highlighted in the Eighty-Sixth Amendment to the Constitution but is also a directive principle to the state to provide free and compulsory education to the children to ensure their all-round development. The order issued by the Directorate of Education was only in pursuance of fulfilling the mandate of Article 21A and not to violate it.
Article 28(1) of the Convention on Rights of Child, “States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.”
Article 4 of the Convention against Discrimination in Education 1960 states, “The States Parties to this Convention undertake furthermore to formulate, develop and apply a national policy which, by methods appropriate to the circumstances and to national usage, will tend to promote equality of opportunity and of treatment in the matter of education and in particular:
(a) To make primary education free and compulsory; make secondary education in its different forms generally available and accessible to all; make higher education equally accessible to all on the basis of individual capacity; assure compliance by all with the obligation to attend school prescribed by law;”
A close examination of the Constituent Assembly Debates would reveal that there was a demand to include in the fundamental rights, the right to primary education to all children and also that the said primary education should be in the mother tongue of the child. In fact, a reference was made to a resolution accepted by the Government of India and published in its gazette on 14th August 1948, which contained the following passage:
“The principle that a child should be instructed in the early stage of its education through the medium of the mother tongue has been accepted by the Government. All educationists agree that any departure from the principle is bound to be harmful to the child and therefore to the interest of the society.”
Furthermore, D.r. B.R. Ambedkar while discussing the framing of the Indian Constitution notably opined as follows:
“Coming to the other question, namely, whether this Constitution should not embody expressly in so many terms, that the right to receive education in the mother tongue is a fundamental right. Let me say one thing and that is that I do not think that there can be any dispute between reasonably minded people that if primary education is to be of any service and is to be a reality it will have to be given in the mother tongue of the child. Otherwise, primary education would be valueless and meaningless. There is no dispute, I am sure, about it and in saying that I do not think it necessary for me to obtain the authority of the Government to which I belong. It is such a universally accepted proposition and it is so reasonable that there cannot be any dispute on the principle of it at all.”
Thus, it can be seen that the imposition of the mother tongue as the medium of instruction at the primary stage was envisaged by the Constitution framers as being integral to the educational development of a child. A policy that is implemented by the state in the larger interest of children ought to take predominance over the right of an individual parent to choose the medium of instruction.
In the international sphere the members of the Joint Expert Group at the Tenth Meeting of the Joint Expert Group UNESCO (CR)/ECOSOC (CESCR) on the Monitoring of the Right to Education referred to the Operational Definition of Basic Education, resulting from an earlier recommendation by the Joint Expert Group.[xliii] The Operational Definition provides that “Basic education is provided in the mother tongue, at least in its initial stages, while respecting the requirements/needs of multilingualism.” Such a definition is useful for the monitoring of the right to basic education in the context of the the language of instruction. It was pointed out that in the context of education for all, UNESCO uses the term: “mother tongue-based multilingualism.” In this respect, additional emphasis could be given to pre-school education in a child’s mother tongue, which is an important issue.
The UNESCO Education Position Paper, Education in a multilingual world (2003), in particular to the three basic principles, enumerated in it, which were considered to be pertinent in terms of policy formulation:
(i) UNESCO supports mother tongue instruction as a means of improving educational quality by building upon the knowledge and experience of the learners and teachers.
(ii) UNESCO supports bilingual and/or multilingual education at all levels of education as a means of promoting both social and gender equality and as a key element of linguistically diverse societies.
(iii)UNESCO supports language as an essential component of inter-cultural education in order to encourage understanding between different population groups and ensure respect for fundamental rights.
Basically, UNESCO has taken the approach of mother tongue-based multilingual education. Besides Article 51(c) of the Constitution states that, “The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration
This issue has been examined by the European Court of Human Rights in the Belgian Linguistic Case.[xliv] The applicants were French-speaking Belgian nationals who were aggrieved that the Belgian Government had not set up any government school in their district, whose language of instruction was French. The Court held that the State was under no obligation to respect the linguistic preferences of parents. This is because Article 2 of Protocol No. 2 to the European Convention on Human Rights states that the State “…shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” The Court held that the phrase ‘religious and philosophical convictions’ does not include linguistic preferences.[xlv]
In Sahyadri Education Trust v. State of Karnataka,[xlvi]it was held that a regulation which requires imparting pre-primary and primary education up to IVth standard in mother tongue is a reasonable regulation, in the interest of excellence in education.
Despite such arguments ,the fact remains that Fundamental Rights in the Constitution have always been given preference over Directive principles. This was held in State of Madras v Champakam Dorairajan.[xlvii] Moreover ,Directive Principles cannot be enforced by any direction of the court under Article 37 of the Constitution whereas Article 32 allows the Supreme Court and Article 226 allows the State High Court to enforce Fundamental Rights.
In the same case, it was held by the Supreme Court that Directive principles of State Policy can never override or eclipse the Fundamental Rights. If the state makes any such laws pursuant to Directive Principles that are in violation of the individual’s Fundamental Rights, such laws are likely to be struck down.
The aim of a Directive Principle, other than to observe the mandate of Welfare State, is to take steps that ensure the realization of Fundamental Rights as enshrined in Part III of the Constitution. But such policies that the state may make to realize the rights of one person cannot cause discontent to another by violating his Fundamental Right. In the case of Vishakha v State of Rajasthan[xlviii] it was held that Fundamental Rights must co-exist. In order to enforce the right of one person, the rights of another cannot be infringed. So if the state seeks to impose free and compulsory education it may do so but it cannot force children to follow the mother tongue as the medium of instruction as that would be a violation of their right to choose. The solution is to come up with a compromise which will create a balance between the right that exists and the directive that seeks to implement it otherwise in a rights based system that allows too much liberty with enforcement of rights without due consideration of the greater need would grievously impede State progress. Hopefully a precedent will be set when the Supreme Court will pass its judgement in State of Karnataka v Associated Management of Primary and Secondary Schools[xlix]. Until then we can only contemplate and wait.
Formatted on 1st March 2019.
[i]Mohini Jain vs State Of Karnataka And Ors, 1992 AIR 1858, 1992 SCR (3) 658
[ii]Unni Krishnan, J.P. &Ors.v. State of Andhra Pradesh &Ors. 1993 AIR 217
[iii] ILR 2008 KARNATAKA 2895
[v] ILR 2008 KARNATAKA 2895
[vi] 1955 SCR 568
[vii] ILR 2009 KARNATAKA 10
[viii] ILR 2008 KARNATAKA 2895
[ix] 1963 AIR 703
[x] ILR 1993 KAR 834
[xi] 2000 (2) CTC 344
[xii] 1988 (3) KarLJ 266
[xiii] AIR 1989 Kant 226
[xiv] 2000 (2) CTC 344
[xv] 1975 SCR (1) 173
[xvi] Writ Appeal No. 2740 of 1997
[xvii] 1963 AIR 703
[xviii] AIR 1989 Kant 226
[xix] Special Rapporteur’s Preliminary Report, 1999, supra note 6 at 24.
[xx] General Comment No. 20 on non-discriminationin Economic, Social and Cultural Rights (art. 2, para. 2) of CESCR (E/C.12/GC/20), paragraph 21.
[xxi]Ibid. para. 59.
[xxii] Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium, Application no 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, judgement dated 23 July 1968, available at http://www.echr.org
[xxiii]Ibid at p. 30, para 9.
[xxiv]“No Kannada Medium or Teacher in Govt School”, Deccan Herald, February 9, 2007
[xxv] ILR 2008 KARNATAKA 2895
[xxvi] (2004) 6 SCC 264
[xxvii] AIR 1990 SC 851
[xxviii] The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among the UN Agencies (United Nations, May 2003), available at http://www.crin.org/docs/resources/publications/ hrbap/HR_common_understanding.doc, visited on December 10, 2006; The States re-affirmed the principle of interdependence and inter-connectedness of human rights.
[xxix] K Halvorsen, “Notes on the Realisation of the Human Right to Education”, 12(3) Human Rights Quarterly
341 (1990) at 349; P Alston and N Bhuta, “Human Rights and Public Goods: Education as a Fundamental Right in India”, Working Paper No. 6, Centre for Human Rights and Global Justice, October 2005, at 31; Sen, supra note 49 at 2921,
[xxx]Section 3.2.3 on Minimum Entitlements in the Context of Acceptability and Adaptability.
[xxxi] CESCR General Comment No. 13, supra note 57. See also, Special Rapporteur’s Preliminary Report,
1999, supra note 6. The framework adopted by the Special Rapporteur in her report dated January 13, 1999
also finds mention in the said General Comment dated December 8, 1999.
[xxxii]Ibid at 15–23.
[xxxiii] Progress Report of the Special Rapporteur on the Right to Education, Commission on Human Rights, 2000,
56th Session, E/CN.4/2000/6, available at www.un.org, visited on November 13, 2005, at 16;
[xxxiv] Special Rapporteur’s Preliminary Report, 1999, supra note 6 at 6.
[xxxv]Ibid at 23. Also, CESCR General Comment No. 13, supra note 57 at para 6. See infra, section 3.2.3 on
[xxxvi]Ibid at 23–4. Section 3.2.3 on Minimum Entitlements
[xxxvii] Right to Education (Article 13 of the Covenant), General Comment No. 13, E/C.12/1999/10, December 8,
1999, at para 15, available at, www.un.org, visited on November 13, 2005; herein after cited as CESCR
General Comment No. 13.
[xxxviii] Final Report of the World Conference on Education for All: Meeting Basic Learning Needs, Jomtien, Thailand, 5–9 March 1990, Inter-AgencyCommission (UNDP, UNESCO, UNICEF, World Bank) for the World Conference on Education for All, New
[xxxix] National Knowledge Commission, Report to the Nation 2006 (New Delhi: National Knowledge Commission,
Government of India, 2006) at 38
[xl] 1994 SCC (1) 550
[xli] AIR 1989 Kant 226
[xlii](1997) 9 SCC 377
[xliii]The Operational Definition of Basic Education was elaborated by the Experts’ Consultation on the Operational Definition of Basic Education, organized on 17-18 December 2007 at UNESCO HQ. This was in response to the recommendation by the Joint Expert Group for the elaboration of an operational definition of basic education that will be universally accepted and recognized.
[xliv] Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium, Application no 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, judgement dated 23 July 1968, available at http://www.echr.org
[xlv]Ibid at p. 29, para 6.
[xlvi]ILR 1988 KAR 2188
[xlvii]AIR 1951 SC 226
[xlviii]AIR 1997 S C 3011