Rajasthan High Court: Dinesh Mehta J. allowed the petition and decided that the school will be converted to English medium subject to the decision taken by SDMC by majority of its members.
Background
The facts of the case are such that a school named Shri Hari Singh Sr. Sec. School, Pilwa has been functioning in village Pilwa since 1980. The school has been catering to the educational needs of about 600 children from all sects including girls residing in such village and nearby villages. The medium of instruction in the school is ‘Hindi’ since its inception. The petitioner 1 is the School Development Management Committee i.e. ‘SDMC’ represented by one of its members while petitioners 2 and 3 are parent-members of the SDMC. The SDMC is a statutory body constituted under section 21 of Right of Children to Free and Compulsory Education Act, 2009 i.e. RTE Act’. The petitioners in the instant case feel aggrieved of the decision dated 13-09-2021 taken by the State Government and consequential decision/order dated 20-09-2021 of the respondent No.2 by which ‘the school’ has been converted to an English Medium School – Mahatma Gandhi Government School (English Medium).
Observations
(i) Whether Article 21A of the Constitution of India which guarantees a right to education, also guarantees right to receive education in mother tongue or home language?
The Court observed that from perusal of Article 21A of the Constitution of India reveals that it enjoins upon the State to provide free and compulsory education to all children between the age of 6 to 14 years, but then, such right is not an absolute right, as its expanse has been hedged by the expression “in such manner as the State may, by law determine”. Since, Article 21A of the Constitution is tethered with the words “in such manner, as the State, may, by law determine”, according to this Court the State may by law provide the medium and manner to provide such free education, which in a given case can be Hindi, English or even regional dialect – the mother tongue of the child. No child or parent can claim it as a matter of right, which he/his ward should be instructed in a particular language or the mother tongue only, on the basis of what has been guaranteed under Article 21A of the Constitution.
(ii) Whether right to get education in mother tongue or Hindi is a fundamental right?
The Court observed that fundamental right guaranteed under Article 19(1)(a) is only subject to reasonable restriction by law to be enacted, by the State, in the opinion of this Court, the instant decision taken or the State’s policy decision, cannot whittle down the fundamental right of a child to be taught in a particular medium, which is assured rather protected by Article 19(1)(a) of the Constitution of India.
(iii) Whether the State’s policy decision of converting the school in question to Mahatma Gandhi English Medium School is in conflict with the provisions of section 20, 21, 22 and 29(2)(f) of the Act of 2009?
The State of Rajasthan promulgated Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 wherein section 21 and 22 of the Act of 2009 and Rule 4 & 5 of the Rules of 2011, lays down that School Management Committee is required to prepare a school development plan which shall contain details of class-wise enrollments each year, requirement of number of additional teachers, requirement of additional infrastructure etc. Thus, by reading the provisions of the Act of 2009 and Rules of 2011, the Court is unable to conclude that prescription of medium of instruction is a decision to be taken by the School Management Committee, as a part of school development plan. Preparing a school development plan cannot be misconstrued to mean the prescription of syllabus and medium of instructions. It has to be done by the experts in the field of education/child education.
(iv) Whether the consent of School Development Management Committee (SDMC) is necessary before converting a Hindi medium school to an English medium school?
The Court observed that the functions to be discharged by the School Development Management Committee under clause (a) and (b) of section 21 (2) of the Act of 2009 do not include the decision to be taken with respect to language or medium in which the students of the school shall be taught. The medium of instruction is to be determined by the Appropriate Authority or Rajasthan School Education Council.
The Court observed that Article 19(1) (a) of the Constitution of India is the fountain head, being repository of the right to freedom of speech and expression from where flows such right. Article 19(1)(a) has wide ambit and it includes within its fold, right to have education in a particular medium. The right of having elementary education in mother tongue is also a statutory right conferred by section 29 (2)(f) of the Act of 2009, according to which medium of instruction, as far as practicable, is required to be in child’s mother tongue.
The power to frame laws in the subject of education falls in the Entry No.25 of concurrent list of the VII Schedule. And since the Act of 2009 occupies the field which unequivocally prescribes that medium of instructions in elementary education as far as practicable, be in mother tongue/home language of the child, any law made or framed by the State but for the assent of the President would be repugnant by virtue of Article 254 of the Constitution.
The Court opined, English, as a medium of instruction cannot be thrusted upon a child even by a legislation enacted by the State Government, much less by a policy decision.
Be that as it may. Since the petitioner No.1 – SDMC of which petitioner No.2 & 3 are members, has itself decided to have a school of English medium, impugned decision of the State at the instance of the present petitioners cannot be quashed, more particularly, because the decision of the State or its policy as such are not under challenge.
The Court observed that the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19. In absence of any valid legislation brought by the State of Rajasthan, this Court is of the view that such right cannot be abrogated or taken away. The impugned decision dated 20.09.2021 seeking to convert the school in question to a Hindi medium school with immediate effect (session 2021-22) is fortiori, violative of Article 19(1)(a) and 14 of the Constitution of India.
Indisputably, the School Development Management Committee is a statutory body, constituted under the provisions of section 21 of the Act of 2009 and Rule 3 of the Rules of 2011. Section 21(2) and 22 of the Act of 2009 enjoins upon the committee to monitor the working of the school and prepare/recommend school development plan. In the opinion of this Court, the State’s administrative decision and action of forcing English as a mode or medium of instruction is violative of section 21 and 22 of the Act of 2009, particularly, in the face of resolutions adopted by the SDMC.
The Court keeping in mind the facts, policy decision and laws/rules directed that “in case, for the ensuing session i.e., 2022-23, the State wishes or proposes to convert the school in question to Mahatma Gandhi English Medium School, it shall convene a meeting of the School Development Management Committee constituted under Rule 3 of the Rules of 2011 in presence of the Sub Divisional Magistrate/Tehsildar and a nominee of District Education Officer concerned. Notice of the meeting with the proposed agenda will be circulated well in advance. If the School Development Management Committee by majority of the members present, resolves that the school in question be converted to an English medium school, then only, the State’s decision to convert the school in question to a Mahatma Gandhi English Medium School shall be given effect to. Else, the school will not be converted to an English medium school.”[School Management Development Committee v. State of Rajasthan, 2022 SCC OnLine Raj 38, decided on 04-01-2022]
Arunima Bose, Editorial Assistant has reported this brief.
Appearances:
For petitioner: Mr. Moti Singh
For respondent: Mr. Pankaj Sharma, Mr. Rishi Soni and Mr. Deepak Chandak