The Andhra Pradesh High Court recently set aside the policy decision of the state government to convert the medium of instruction in classes I to VI in all primary, upper primary and high schools into English, from the academic year 2020-2021.

It was held by the High Court that the freedom to choose medium of instruction during the primary stage of school is recognised as a fundamental right under Article 19(1)(a) of the Constitution.

Consequently, the High Court held the Government Orders (GOs) to be unconstitutional, as they abridged the liberty of the children to choose their mother tongue i.e. Telugu as their medium of instruction.

Does it mean that the government can never impose English as medium of instruction in schools? Where did the government go wrong in justifying its decision when admittedly the object and purpose of the policy was to place children of the state on a better footing and keep them ahead from the rest in the global competition?

The Constitution Bench of the Supreme Court held in the case of State of Karnataka and anr v. Associated Management of English Medium Primary and Secondary Schools and Others that a child, and on his behalf his parent or guardian, has the right to choose the medium of instruction at the primary school stage under Article 19(1)(a) of the Constitution. The Andhra Pradesh High Court placed heavy reliance on this judgment to set aside the GOs.

However, by and large, the High Court ignored that the Karnataka judgment categorically held that right to choose medium of instruction is not guaranteed either under Article 21 or Article 21A of the Constitution. In short, right to education does not include right to choose medium of instruction.

The juxtaposition and interplay of Articles 19(1)(a), 20 and 21A of the Constitution indicate that had the government confined its policy only to government-run schools, it might have been held as intra vires the Constitution. Going by the strict implementation of GOs, no school including private schools in Andhra Pradesh would be able to continue Telugu as medium of instruction, thereby curtailing the liberty of the children or their parents to choose medium of instruction guaranteed under Article 19(1)(a).

However, if the policy is restricted only to government-run schools, the children could join private schools offering Telugu as medium of instruction, just how parents are currently approaching private schools for English medium. The question of violation of Article 19(1)(a) does not arise in such circumstances.

In the case of Unni Krishnan JP v. State of Andhra Pradesh , the Supreme Court held that under Article 21 of the Constitution, every child/citizen of this country has a right to free education until he completes the age of 14 years. Further, the Parliament of India, in line with this judgment, incorporated Article 21A by way of a Constitution (Eighty-sixth Amendment) Act, 2002.

Article 21A of the Constitution reads that the State shall provide free and compulsory education to all children between ages six and fourteen years.

Accordingly, the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) was formulated essentially to fulfil the object and purpose envisaged under Article 21 and Article 21A of the Constitution. The statement of objects reasons of the RTE Act also clearly provides that it is a consequential legislation of Article 21A. Therefore, it is imperative that the interpretation of the provisions of RTE Act shall be in consonance with scope and ambit of Article 21 and Article 21A of the Constitution.

In the Karnataka judgment, the Supreme Court partly overruled the Full Bench decision of Karnataka High Court and held that State may impart free education in any medium of instruction and not necessarily in mother tongue. It was held by the Supreme Court as follows:

It is clear from the interpretation given by the Supreme Court that no government is constitutionally mandated to provide free education in mother tongue of the child. In fact, it is open for the government to impart education in any language subject to the applicable legislation.

Section 29(2)(f) of the RTE Act provides that the medium of instruction shall, as far as practicable, be in the child’s mother tongue. Had the intention of the framers of RTE Act been to impose mother tongue as the only medium of instruction, there was no necessity to use the specific expression “as far as practicable”.

The RTE Act undoubtedly wanted to leave it for the state governments to choose any language as their medium of instruction while imparting free education. It is unambiguous that states are left with such liberty because Article 21 and Article 21A never recognised the right to choose medium of instruction as a fundamental right.

Therefore, as long as the states do not encroach upon the liberty of children or their parents under Article 19(1)(a), they are empowered to provide free education in any language as a matter of policy.

The Andhra Pradesh government, in its attempt to interpret the expression “as far as practicable” as only a directory provision and discretionary for compliance, relied on NK Chauhan and others v. State of Gujarat and others, Osmania University v. VS Muthurangam and others, Rajendra Singh and others v. State of UP, and Iridium Telecom Ltd. v. Motorala Inc.

However, the High Court felt that Section 29(2)(f) of the RTE Act should be interpreted to mean only mother tongue as medium of instruction.

In fact, the High Court in para 74 relied on the scope of Article 19(1)(a) as laid down in Karnataka judgment to interpret Section 29(1)(f), and gave the scope of Article 21 and Article 21A, which was the actual fulcrum of interpretation of RTE Act.

The government is certainly wrong in attempting to bring a change in the medium of instruction en bloc by imposing its policy decision on the private and minority institutions. The High Court was correct in holding such actions as in violation of not only Article 19(1)(a) but also Article 29 and Article 30(1) of the Constitution.

However, the High Court ought to have applied the doctrine of severability and held the policy decision as unconstitutional only to the extent of its applicability to private and minority institutions.

It is a settled principle of law that courts should not interfere with the policy decision of the government unless it appears that such decision is arbitrary, discriminatory, malafide or actuated by bias.

If the government decides to impart free education in English medium only in government run schools, it cannot be held to be arbitrary because it is not ultra vires the Constitution in view of the Karnataka judgment.

Further, it is also not in violation of Section 29(2)(f) of the RTE Act because the Section is designed to confer discretion to the states to choose the language of medium of instruction.

The author is an advocate practising before the Andhra Pradesh High Court.