This week, a Constitution Bench of the Supreme Court handed down a very interesting opinion on the constitutional issues involving the medium of instruction in schools. In State of Karnataka v. Associated Management, the Court struck down a Karnataka Government Order, which stated that:
“The medium of instruction should be mother tongue or Kannada… in all Government recognized schools in classes 1 to 4.”
The Associated Management of Primary and Secondary Schools in Karnataka challenged this policy on the grounds of Article 19(1)(a) [freedom of speech], 19(1)(g) [freedom of occupation], 21A [education] and 26, 29 and 30 [minority rights]. At stake was also the interpretation of Article 350A of the Constitution, which provided that:
“It shall be the endeavour of every 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.”
The basic issue in this case turned upon the scope and extent of legislative regulatory power over schools, and whether and to what extent this regulatory power was to be limited by existing fundamental rights.
The Court was first called upon to interpret the meaning of the phrase “mother tongue”, as used in Article 350A. Going into the history of the Amendment, it noted that it was the result of the reorganisation of States along linguistic lines, and aimed at preserving the language of linguistic minorities within states, that themselves had been constituted on the basis of language. Mother-tongue, therefore, referred to the language of linguistic minority groups in States, where that differed from the dominant regional language. In individual cases, it would be the parent of guardian who would decide the issue (Paragraph 26).
Having established the meaning of “mother tongue”, the next question concerned the validity of the Government Order. This was where the Constitution came in. The Court first looked at Article 19(1)(a). It cited Mill and Laski to understand the conceptual foundations of free speech. In On Liberty, Mill writes of the “liberty of tastes and pursuits; of framing the plan of our life to suit our own character…” In The Grammar of Politics, Laski writes: “The freedoms I must possess to enjoy a general liberty are those which, in their sum, will constitute the path through which my best self is capable of attainment.”
The Court’s choice of quotations is particularly interesting. Very broadly, free speech is justified on two grounds. The democratic (or instrumental) justification of free speech considers it crucial to a functioning democracy. Insofar as the legitimacy of government depends upon the will of the people, an open public sphere, in which ideas and opinions circulate freely, is necessary towards the constitution of an informed electorate. This vision of free speech, developed by the American scholars Mikeljohn and Post, ultimately traces its philosophical roots to an idea of democracy as a process in which people take form their interests and preferences, and take collective decisions, through their participation in a free and unconstrained conversation, set up and pursued on equal terms.
There is, however, another vision of free speech that understands it as crucial to individual autonomy. It is through expression and expressive activities that we form and communicate not only our preferences and interests, but our very selves. Free speech, thus, is an intrinsic good. Its value lies not in the goals it serves – such as democracy – but in how it is indispensable to personal development and identity.
While these two visions are often complementary, they can, at times, come into conflict. Historically, it is the democratic justification of free speech that has caught the attention of the Court, in famous cases involving newspaper regulation (Sakal Papers), film censorship (K.A. Abbas), the right to vote (PUCL), silencing unpopular speech (Ram Manohar Lohia), and so on. Here, however, the Court unambiguously affirms the autonomy-based vision of free speech.
This has a few interesting implications. The most important one is that if we accept that individuals have the right to freely develop their own personality, a right served by expressive activity, this then implies that the government is not permitted to intervene on the ground that certain forms of speech will corrupt or otherwise shape an individual’s identity in ways that the State considers undesirable. The Court acknowledges as much immediately after quoting Mill, when it holds:
“According to Mill, therefore, each individual must in certain matters be left alone to frame the plan of his life to suit his own character and to do as he likes without any impediment and even if he decides to act foolishly in such matters, society or on its behalf the State should not interfere with the choice of the individual.”
This is important, because under Article 19(2), one permissible ground of restricting free speech is “morality”. We have exhaustively analysed the content of this restriction previously on this blog, and argued that among three possible meanings of the term “morality’ – i.e., individual morality, public morality and constitutional morality, it is the last one that should be preferred. On the autonomy vision of free speech, however, that the Court affirms in this judgment, individual morality (which formed part of the Court’s decision in Ranjit Udeshi, when it upheld the ban on Lady Chatterley’s Lover) is out: the shaping of one’s own personality through expression is a matter of individual choice. Paternalistic or moralistic arguments cannot be used to justify restrictions. This would be particularly relevant when it comes to regulating pornography and other forms of speech that have historically been considered “immoral”, and it will be interesting to see if the intellectual basis of this opinion has an impact in future free speech cases.
Given its theory of free speech, it was then easy for the Court to hold:
“The right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the freedom of a child to be educated at the primary stage of school in a language of the choice of the child and the State cannot impose controls on such choice just because it thinks that it will be more beneficial for the child if he is taught in the primary stage of school in his mother tongue. We, therefore, hold that a child or on his behalf his parent or guardian, has a right to freedom of choice with regard to the medium of instruction in which he would like to be educated at the primary stage in school.”
The Court reiterated that permissible restrictions were limited to those specified under 19(2) [emphatically not public interest], precisely because they would be “harmful to the development of personality… and not in the larger interests of the nation.” (paragraph 32). This is also important because despite the express wording of Article 19, the Court has often seen fit to read in a “public interest” exception spun out of whole cloth (Ranjit Udeshi is one glaring offender, but by no means the only one). This opinion clarifies that the free speech/public interest balance has already been made in the exceptions scheme under Article 19(2), and that it would therefore be improper to import an additional public interest limitation.
The Court summarily rejected the Article 21A claim, but upheld – rather straightforwardly – the minority rights claims under Articles 29 and 30. (Paragraph 37). It then extended the argument to non-minority, un-aided schools by invoking Article 19(1)(g). Citing T.M.A. Pai for the proposition that the right to set up an educational institution is protected by Article 19(1)(g), the Court noted:
“If a citizen thinks that he should establish a school and in such a school, the medium of instruction should be a particular language then he can exercise such right subject to the reasonable regulations made by the State under Article 19(6) of the Constitution.”
In this case, the government was unable to show a reasonable restriction in the public interest, such as the maintenance of educational standards (paragraph 40), and so it failed on that count as well.
Interestingly, the Court was faced with an argument from educationists, to the effect that it was actually most beneficial for learning and personality development purposes, that children be taught in their mother tongue at a young age. Although this is not strictly a legal issue, it presents a fascinating question: to what extent are fundamental rights regulated by the internal norms of autonomous sub-systems within society? We often extend a high degree of latitude to professional communities – such as, for instance, the medical community, the academic community, and so on – to regulate their own functioning, through norms prescribed by those whom the profession vests with authority. Sometimes, these norms come into conflict with what – in an abstract context – we consider to be individual rights, and it is not immediately clear which of the two must give way. The Supreme Court’s opinion comes down on the side of individual rights – the right to free speech and the right to occupation – but an analysis of why these rights must outweigh the internal regulation of the educational profession would have been helpful as well.
The Court’s unambiguous affirmation of the individual-centric vision of free speech is a welcome development, though, and it remains to be seen whether the Court will take it forward in subsequent cases involving Article 19(1)(a).
Constitutional Law and Philosophy 