Entire Judgement of Supreme Court in Mother-tongue medium case

The Halmidi inscription that is believed to have started the usage of Kannada in administration 1,500 years ago. Pic: Wikipedia

The Halmidi inscription that is believed to have started the usage of Kannada in administration 1,500 years ago. Pic: Wikipedia

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.5166-5190 OF 2013

State of Karnataka & Anr.                                … Appellants

Versus

Associated Management of (Government
Recognised – Unaided – English Medium)
Primary & Secondary Schools & Ors.            … Respondents

WITH

WRIT PETITION (C) No.290 of 2009

Nallur Prasad & Ors.                                        … Appellants

Versus

State of Karnataka & Ors.                             … Respondents

CIVIL APPEAL Nos.5191-5199 OF 2013

R.G. Nadadur & Ors.                                        … Appellants

Versus

Shubodaya Vidya Samasthe & Anr.              … Respondents

AND

CIVIL APPEAL No.     5090         OF 2014
(Arising out of S.L.P. (C) No.32858 of 2013)

State of Karnataka & Ors.                                … Appellants

Versus

Mohamed Hussain Jucka                               … Respondent

J U D G M E N T

A. K. PATNAIK, J.

Leave granted in S.L.P. (C) No.32858 of 2013.
Facts leading to the reference to the Constitution Bench:

2.     The  Government  of  Karnataka  issued  a  Government   Order   dated
19.06.1989 prescribing that “from 1st  standard  to  IVth  standard,  mother
tongue will be the medium of instruction”.  On  22.06.1989,  the  Government
of Karnataka issued a corrigendum substituting the aforesaid  words  in  the
earlier Government Order dated 19.06.1989 by the following words:

“from 1st standard to IVth standard, where it  is  expected  that
normally mother tongue will be the medium of instruction.”

The orders dated 19.06.1989  and  22.06.1989  were  challenged  before  this
Court and a Division Bench of this Court in its  judgment  dated  08.12.1993
in English Medium Students Parents Association v. State of Karnataka &  Ors.
[(1994) 1 SCC 550] held that the two orders of the Government  of  Karnataka
were constitutionally valid.

3. Thereafter, in cancellation of all earlier orders pertaining  to  the
subject, the Government of  Karnataka  issued  a  fresh  order  dated
29.04.1994 regarding the language policy to be  followed  in  primary
and high schools  with  effect  from  the  academic  year  1994-1995.
Clauses 2 to 8 of the Government Order dated 29.04.1994,  with  which
we are concerned in this reference, are extracted hereinbelow:-

“2. The medium of instruction should be mother tongue or Kannada,
with effect from the academic  year  1994-95  in  all  Government
recognized schools in classes 1 to 4.

3. The students admitted to 1st standard  with  effect  from  the
academic year 94-95, should be taught in mother tongue or Kannada
medium.

4. However, permission can be granted to the schools to  continue
to teach in the pre-existing medium to the students of  standards
2 to 4 during the academic year 94-95.

5. The students are permitted to change over to  English  or  any
other language as medium at their choice, from 5th standard.

6. Permission can be granted to only students whose mother tongue
is English, to study in English medium  in  classes  1  to  4  in
existing recognized English medium schools.

7. The Government will consider regularization  of  the  existing
unrecognized schools as per policy indicated in paragraphs 1 to 6
mentioned above. Request of schools who have  complied  with  the
provisions of the code of education and  present  policy  of  the
government will be considered on the basis of the report  of  the
Zilla  Panchayat   routed   through   commissioner   for   public
instructions.

8. It is directed that all  unauthorized  schools  which  do  not
comply with the above conditions, will be closed down.”

Thus, these clauses of the Government order dated 29.04.1994  provided  that
medium of instruction should be mother tongue or Kannada  with  effect  from
the academic year 1994-1995 in all Government recognized schools in  classes
I to IV and the students can be permitted to change over to English  or  any
other language as medium of their  choice  from  class  V.   The  Government
Order dated 29.04.1994, however, clarified that permission  can  be  granted
to only those students whose mother tongue is English, to study  in  English
medium in classes I to IV in existing recognized English medium schools.

4.  Aggrieved by the clauses of the Government  Order  dated  29.04.1994
which prescribed that the medium of instruction in classes I to IV in
all Government recognized schools will be mother  tongue  or  Kannada
only, the Associated Management of Primary and Secondary  Schools  in
Karnataka filed Writ Petition No.14363 of 1994  and  contended  inter
alia that the right to choose the medium of instruction in classes  I
to IV of a school is a fundamental  right  under  Articles  19(1)(a),
19(1)(g), 26, 29 and 30(1) of the Constitution and that the  impugned
clauses of the order dated 29.04.1994 of the Government of  Karnataka
are ultra vires the Constitution.  The State  of  Karnataka  and  its
officers, on the other hand, relied on the decision of  the  Division
Bench of this Court in English Medium Students Parents Association v.
State of Karnataka & Ors. (supra) and contended  that  the  State  in
exercise of its power to regulate primary education can, as a  matter
of policy, prescribe that the medium of instruction in classes  I  to
IV would be in mother tongue of the child or Kannada.  The  State  of
Karnataka also contended that Article 350A of the Constitution  casts
a duty on the State to provided adequate facilities  for  instruction
in the mother tongue at the primary stage of  education  to  children
belonging  to  linguistic  minority  groups  and  the  Government  of
Karnataka, after considering a report of  experts  in  the  field  of
education, has prescribed in the Government  Order  dated  29.04.1994
that medium of instruction for children studying in classes I  to  IV
shall be in the mother tongue of the child.

5. A Full Bench of the Karnataka High Court heard the writ petition  and
all other connected writ petitions and in its common  judgment  dated
02.07.2008, held:

“(1) Right to education is a fundamental right being a  species  of
right to life  flowing  from  Article 21 of  the  Constitution.  By
virtue  of  Article 21-A right  to  free  and  compulsory   primary
education is a fundamental right guaranteed to all children of  the
age of six to fourteen years. The  right  to  choose  a  medium  of
instruction is  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.

(2) Right to freedom of speech and expression includes the right to
choose a medium of instruction.

(3) Imparting education is an occupation and, therefore, the  right
to carry on  any  occupation  under  Article 19(1)(g) includes  the
right to establish and administer  an  educational  institution  of
one’s choice. ‘One’s choice’  includes  the  choice  of  medium  of
instruction.

(4) Under Article 26 of the Constitution of India  every  religious
denomination has a right to establish and maintain  an  institution
for charitable purposes which includes an educational  institution.
This is a  right  available  to  majority  and  minority  religious
denominations.

(5) Every section of the society  which  has  a  distinct  language
script or culture of its own has the fundamental right to  conserve
the same. This is a right which is conferred on both  majority  and
minority, under Article 29(1) of the Constitution.

(6) All minorities,  religious  or  linguistic,  have  a  right  to
establish and administer educational institutions of  their  choice
under Article 30(1) of the Constitution.

(7) Thus, every citizen, every religious  denomination,  and  every
linguistic and religious  minority,  have  a  right  to  establish,
administer and  maintain  an  educational  institution  of  his/its
choice under Articles  19(1)(g), 26 and 30(1) of  the  Constitution
of India,  which  includes  the  right  to  choose  the  medium  of
instruction.

(8)  No  citizen  shall  be  denied  admission  to  an  educational
institution only on the ground of language  as  stated  in  Article
29(2) of the Constitution of India.

(9) The Government policy in introducing Kannada as first  language
to the children whose mother tongue is Kannada is valid. The policy
that all children, whose mother tongue is not Kannada, the official
language of the State, shall study Kannada language as one  of  the
subjects is also valid. The Government policy to have mother tongue
or regional language as the medium of instruction  at  the  primary
level is valid and legal, in the case of schools run  or  aided  by
the State.

(10) But, the Government policy  compelling  children  studying  in
other Government recognized schools to have primary education  only
in the mother tongue or  the  regional  language  is  violative  of
Article 19(1) (g), 26 and 30(1) of the Constitution of India.”

The High Court accordingly allowed the writ petitions  and  quashed  clauses
2, 3, 6 and 8 of the Government order dated 29.04.1994 in their  application
to schools other than schools run or aided  by  the  Government  but  upheld
rest of the Government order dated 29.04.1994.

6. Aggrieved by the judgment dated 02.07.2008 of the Full Bench  of  the
High Court, the State of Karnataka and  the  Commissioner  of  Public
Instruction, Bangalore, have  filed  Civil  Appeal  Nos.5166-5190  of
2013.   Fifteen  educationists  claiming  to  be  keen  that  primary
education in the State of Karnataka from I to IV standard  should  be
in the mother tongue of the child or Kannada  have  also  filed  Writ
Petition (C) No.290 of 2009 for declaring that the  Government  Order
dated 29.04.1994 is constitutionally  valid  in  respect  of  unaided
Government recognised primary schools and  for  a  writ  of  mandamus
directing the State Government  to  implement  the  Government  Order
dated 29.04.1994.

7. As the judgment dated 02.07.2008 of the Full Bench of the High  Court
was not implemented for more than a year, a  Division  Bench  of  the
High Court passed an order dated 03.07.2009 in Writ Appeal No.1682 of
2009 and other connected matters asking the Government  of  Karnataka
to comply with the judgment dated 02.07.2008 of the Full Bench of the
High Court and aggrieved by the said order dated 03.07.2009  in  Writ
Appeal  No.1682  of  2009,  different  officers  of   the   Education
Department of the Government of Karnataka  have  filed  Civil  Appeal
Nos.5191-5199 of 2013.

8. A learned Single Judge of the Karnataka High Court directed the State
of Karnataka in Writ Petition No.3044 of 1994 to grant permission  to
an institution to run English medium school from 1st standard to  4th
standard by order dated 22.01.1996.  The order of the learned  Single
Judge was challenged before the Division Bench of the High  Court  in
Writ Appeal No.2740 of 1997, but on 21.02.2012 the Division Bench  of
the High Court dismissed the writ appeal saying that the order  dated
08.07.2008 of  the  Full  Bench  of  the  High  Court  in  Associated
Management of Primary and Secondary Schools in Karnataka v. The State
of Karnataka & Ors. has not been stayed by this Court in the  Special
Leave Petition under Article 136 of the Constitution.   Aggrieved  by
the order dated 21.02.2012 passed  by  the  Division  Bench  in  Writ
Appeal No.2740 of 1997, the State  of  Karnataka  has  filed  Special
Leave Petition (C) No.32858 of 2013.

The questions referred to the Constitution Bench:

9. All these matters were heard by a Division Bench of this Court and on
05.07.2013,  the  Division  Bench  passed  an  order  referring   the
following questions for consideration by the Constitution Bench:

“(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  affect  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?”

In its order dated 05.07.2013, the Division Bench  also  observed  that  the
Constitution Bench may  take  into  consideration  ancillary  or  incidental
questions which may arise during the course of  hearing  of  the  cases  and
further   directed   that   all   other    connected    matters    including
petitions/applications shall be placed before the Constitution Bench.

Contentions of learned counsel for the State of Karnataka:

10. At the hearing before the Constitution Bench,  Professor  Ravi  Varma
Kumar, the learned Advocate  General  for  the  State  of  Karnataka,
submitted  that  the  State  Reorganization   Commission,   1955   in
paragraphs 773 to 777 of its report has referred  to  the  resolution
adopted at the Provincial Education  Ministers’  Conference  held  in
August, 1949 that the medium of instruction and  examination  in  the
junior basic stage must be the mother tongue of the  child  and  that
the mother tongue of the child will be the language declared  by  the
parent or guardian to be the mother tongue.  He submitted  that  this
resolution adopted at the Provincial Education Ministers’  Conference
held in August, 1949, has been approved by the  Government  of  India
and now serves as  a  guide  for  the  State  Governments  in  making
arrangements for the education of the school-going  children  in  the
respective States.  He submitted that after the report of  the  State
Reorganization Commission, 1955, Article 350A has been introduced  in
the Constitution providing 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  a  linguistic
minority group.

11. The learned Advocate General submitted that, in this background,  the
Government order dated 29.04.1994 was issued  by  the  Government  of
Karnataka prescribing that the medium  of  instruction  for  children
studying in classes I to IV in all primary schools recognized by  the
Government will be mother tongue or Kannada from  the  academic  year
1994-95.  He cited the judgment of the Division Bench of  this  Court
in English Medium Students Parents Association v. State of  Karnataka
& Ors. (supra) to submit that experts are  unanimous  in  their  view
that the basic knowledge can easily be acquired by  a  child  through
his mother tongue and that the State Government has the power to  lay
down a policy prescribing that the medium of instruction for children
studying in I to IV standards in all Government recognized schools in
Karnataka will be Kannada or mother tongue.

12.   The learned Advocate General next submitted that the High Court was
not right in coming to the conclusion that the right  to  freedom  of
speech and  expression  guaranteed  under  Article  19(1)(a)  of  the
Constitution includes the right to choose a medium of instruction and
that in exercise of this right, it is  a  fundamental  right  of  the
parents and the child to  choose  a  medium  of  instruction  in  the
primary schools.  He submitted that similarly the High Court was  not
right in coming to the conclusion that the  right  to  establish  and
administer an educational institution under Articles 19(1)(g) and  26
of the Constitution will include the right  to  choose  a  medium  of
instruction.  He submitted that in any case  if  the  State  takes  a
policy decision that the  medium  of  instruction  for  the  children
studying in classes I to IV will  be  their  mother  tongue,  such  a
policy decision of the State Government will be within the regulatory
powers of the State.  He cited the judgment of this Court in  Gujarat
University & Anr. v. Shri Krishna Ranganath  Mudholkar  &  Ors.  [AIR
1963 SC 703] in which a Constitution Bench of this  Court  has  taken
the view that the State  Legislature  has  the  regulatory  power  to
legislate on medium of instruction  in  institutions  of  primary  or
secondary education.  He submitted that  under  Article  162  of  the
Constitution, the State Government has executive powers  co-extensive
with its legislative powers and therefore the Government order  dated
29.04.1994 prescribing that the medium of instruction of all children
studying in classes I to IV will be mother tongue was well within the
powers of the State Government.  He argued that even if  it  is  held
that children and  parents  have  a  right  to  choose  a  medium  of
instruction for classes I to IV or that citizens who have established
schools have a  fundamental  right  under  Article  19(1)(g)  of  the
Constitution to choose the medium in which education will be imparted
to the children studying in their schools, the State  could  restrict
their right by virtue of its regulatory powers and prescribe  that  a
medium of instruction for children studying in classes I to  IV  will
be their mother tongue.

13.   The learned Advocate General next submitted that the High Court was
again not right in coming  to  the  conclusion  that  the  Government
policy compelling children studying  in  schools  recognized  by  the
Government to have primary education only in  mother  tongue  or  the
regional language is violative of Article 30(1) of the  Constitution.
He  submitted  that  so  long  as  the  State  permits  a  medium  of
instruction to be the same as the language of the minority  community
which has established the educational  institution,  the  fundamental
rights under Article 29(1) and 30(1)  of  the  Constitution  are  not
violated because the purport of  Articles  29(1)  and  30(1)  of  the
Constitution is to promote the language of every community  including
the language of a linguistic minority.  He cited State of  Bombay  v.
Bombay  Education  Society  &  Ors.  [AIR  1954  SC  561]  wherein  a
Constitution Bench of this Court has held that a minority group  such
as the  Anglo-Indian  community,  which  is  based,  inter  alia,  on
religion and language, has the  fundamental  right  to  conserve  its
language, script and culture under Article 29(1) and has the right to
establish and administer educational institutions of its choice under
Article  30(1)  and,  therefore,  there  must  be  implicit  in  such
fundamental  right,  the  right  to  impart  education  in  its   own
institution to the children of its own community in its own language.
He also cited D.A.V. College, etc. etc. v. State of  Punjab  &  Ors.
[(1971) 2 SCC 269] wherein a Constitution Bench  of  this  Court  has
held that the purpose and object of linguistic States is  to  provide
greater facility for the development  of  the  people  of  that  area
educationally, socially and culturally in the language of that region
but while the State or the University has every right to provide  for
the education of the majority in the regional medium, it  is  subject
to  the  restrictions  contained  in  Articles  25  to  30   of   the
Constitution and accordingly neither the  University  nor  the  State
could impart education in a medium of instruction in a  language  and
script which stifles the language and script of any  section  of  the
citizens.  According to him, the  rights  under  Articles  29(1)  and
30(1) of the Constitution are thus not affected by  the  order  dated
29.04.1994 of the Government of Karnataka because it prescribes  that
the students in classes I to IV will be  imparted  education  in  the
medium of instruction of the mother tongue of the  children  and  the
mother tongue of the children will be none other than the language of
their linguistic community.

14. The learned Advocate General further submitted that  this  Court  has
held in Usha Mehta & Ors. v. State of Maharashtra &  Ors.  [(2004)  6
SCC 264]  that  the  State  can  impose  reasonable  regulations  for
protecting the larger interests of the State and the nation  even  in
the case of minority  educational  institutions  enjoying  the  right
under Article 30(1) of the Constitution and the “choice”  that  could
be exercised by the minority community  in  establishing  educational
institutions is subject to such reasonable regulations imposed by the
State, but while imposing regulations, the State  shall  be  cautious
not to destroy the minority character  of  institutions.   He  argued
that the Government Order dated  29.04.1994  by  providing  that  the
medium of instruction of children studying in  classes  I  to  IV  in
primary schools will be the mother tongue of the children does not in
any way destroy the minority character of the institutions  protected
under Article 30(1) of the Constitution.

15. The learned Advocate General submitted that the High Court has relied
on the judgment of this Court in T.M.A.  Pai  Foundation  &  Ors.  v.
State of Karnataka & Ors.  [(2002)  8  SCC  481]  in  coming  to  the
conclusion that the Government order dated  29.04.1994  violates  the
fundamental  rights  under  Articles  19(1)(g)  and  30(1)   of   the
Constitution.  He submitted that the High Court has not noticed  some
of the paragraphs of the majority judgment in T.M.A. Pai Foundation &
Ors.  v.  State  of  Karnataka  &  Ors.  (supra)  in  coming  to  its
conclusions.  He referred  to  the  paragraph  54  of  the  aforesaid
majority judgment in which  it  has  been  held  that  the  right  to
establish and maintain  institutions  for  religious  and  charitable
purposes under Articles 19(1)(g) and 26(a)  of  the  Constitution  is
subject to regulations made by the State for maintaining  educational
standards etc.  He referred to paragraph 115 of the majority judgment
in which it has also been held that the right of  the  religious  and
linguistic  minorities  to  establish  and   administer   educational
institutions  of  their  choice  is  not  absolute  and   that   such
institutions have to follow statutory measures regulating educational
standards etc.  He submitted that in paragraph 122  of  the  majority
judgment in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.
(supra), however, it has been held that such regulations must satisfy
the test of reasonableness.  He submitted that the  Government  Order
dated 29.04.1994 prescribing that the medium of instruction  for  all
children studying in classes I to IV in primary schools in the  State
of Karnataka would  be  the  mother  tongue  of  the  children  is  a
regulatory measure and satisfies the test of reasonableness.

16.  The learned Advocate General finally submitted that Article  21A  of
the Constitution is titled ‘Right to Education’ and provides that the
State shall provide free and compulsory education to all children  of
the age of six to fourteen years in such manner as the State may,  by
law, determine.   He  argued  that  Article  21A  is  thus  the  sole
depository of the right to education and  it  is  not  open  for  any
citizen to invoke any other fundamental right like  Article  19(1)(a)
or Article 21 to contend that he has a right  to  be  educated  in  a
medium of instruction of his choice.  He  submitted  that  Parliament
has made the Right of Children to Free and Compulsory Education  Act,
2009 under Article 21A of the Constitution, and Section  29(2)(f)  of
this Act provides that the medium of instruction  shall,  as  far  as
practicable, be the child’s mother tongue.   He  submitted  that  the
High Court was, therefore, not right in coming to the conclusion that
the right to choose a medium of instruction is implicit in the  right
to education under Articles 21 and 21A of the Constitution.

Contentions on behalf of the respondents who support  the  Government  order
dated 29.04.1994:

17.  Mr. K. N. Bhat, learned senior counsel appearing for respondent nos.
2, 5, 6, 7, 9, 10, 11, 15, 17 and 18 in Civil Appeal No.5166 of 2013,
submitted that mother tongue is the language in which  the  child  is
the most comfortable.  He  cited  Usha  Mehta  &  Ors.  v.  State  of
Maharashtra & Ors. (supra) in which a three-Judge Bench of this Court
clearly held that the State can impose reasonable regulations in  the
larger interests of the State and the  nation  even  on  institutions
established by religious  and  linguistic  minorities  and  protected
under Article 30(1) of the Constitution and that the word ‘choice’ in
Article 30 of the Constitution is subject to such regulation  imposed
by the State.  He submitted that the only caution that the State  has
to exercise  is  that  by  imposing  such  regulations  the  minority
character of the institutions is not destroyed.   He  submitted  that
accordingly if the  State  Government  has  issued  the  order  dated
29.04.1994 under Article 162 of the Constitution prescribing that the
medium of instruction for all children studying in classes  I  to  IV
would be mother tongue, such an order being regulatory in nature  and
not affecting the minority character of the institutions, does not in
any way affect the  right  guaranteed  under  Article  30(1)  of  the
Constitution.  He submitted that the conclusion  of  the  High  Court
that the Government Order dated  29.04.1994  insofar  as  it  compels
minority institutions to adopt medium  of  instruction  for  students
studying in classes I to IV as mother tongue is  violative  of  right
under Article 30 of the Constitution, therefore, is not correct.

18.  Mr. Bhat next submitted that Article 19(1)(a)  of  the  Constitution
guarantees the right to freedom  of  speech  and  expression  to  all
citizens and the only restrictions that the State can impose on  this
right are those mentioned in Article 19(2) of the  Constitution.   He
submitted that a reading of Article 19(2) of  the  Constitution  will
show that it empowers the  State  to  make  law  imposing  reasonable
restrictions in the interest of  the  sovereignty  and  integrity  of
India, the security of the  State,  friendly  relation  with  foreign
States, public order, decency or morality or in relation to  contempt
of court, defamation or  incitement  to  an  offence,  but  does  not
empower the State to impose reasonable restrictions in  the  interest
of general public.  He vehemently argued that if the right to freedom
of speech and expression is interpreted so as to include the right to
choose the medium of instruction, the State will  have  no  power  to
impose any reasonable restrictions in the  larger  interests  of  the
State or the nation on this right to choose the medium of instruction
and such an interpretation  should  be  avoided  by  the  Court.   He
submitted that the rationale of the right to freedom  of  speech  and
expression in Article 19(1)(a) of the Constitution and the  power  of
the State to impose reasonable restrictions under  Article  19(2)  of
the Constitution in the interests of the sovereignty and integrity of
India, the security of the State,  friendly  relations  with  foreign
States, public order, decency or morality or in relation to  contempt
of court, defamation or incitement to an offence, have been explained
in the judgments of P.B. Sawant, J. and  B.P.  Jeevan  Reddy,  J.  in
Secretary, Ministry of  Information  &  Broadcasting,  Government  of
India & Ors. v. Cricket Association of Bengal & Ors.  [(1995)  2  SCC
161].  He submitted that considering these serious consequences which
may arise if we take the view that the right to freedom of speech and
expression includes the right to choose  medium  of  instruction,  we
should leave this question open if it is not necessary to  decide  it
in this case.

Contentions on behalf of the respondents who challenge the Government  order
dated 29.04.1994:

19.  Mr. Mohan V. Katarki, learned counsel appearing for respondent  no.1
in Civil Appeal No.5166 of 2013, submitted that under Article 350A of
the Constitution, the State has no power to  compel  any  educational
institution to adopt mother tongue as the medium of instruction.   He
submitted that Article 350A of the Constitution only casts a duty  on
every State and 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 does not empower the  State  to  interfere  with
right to freedom of speech and expression and the right to  establish
and administer schools under Article 19 of the Constitution.

20.  Mr. Katarki submitted that the reliance placed by the State  on  the
decision of this Court in English Medium Students Parents Association
v. State of Karnataka & Ors. (supra) in which the earlier  Government
Order dated 22.06.1989  prescribing mother tongue as  the  medium  of
instruction was upheld is misplaced as the reason given by this Court
in the aforesaid decision for upholding the order dated 22.06.1989 of
the State Government is that the order did not  have  an  element  of
compulsion.  He submitted that the Government order dated 29.04.1994,
on the other hand, makes it compulsory for all Government  recognized
schools including private unaided schools to adopt mother  tongue  of
the child as the medium of instruction in classes I to IV.

21.  Mr. Katarki submitted that this Court has  held  in  Unni  Krishnan,
J.P. & Ors. v. State of Andhra Pradesh & Ors. [(1993) 1 SCC 645] that
the right to education of a child up to the age of 14 years  is  part
of the right to life  under  Article  21  of  the  Constitution  and,
therefore, the High Court was right in coming to the conclusion  that
the right to be educated in the medium of instruction of  the  choice
of the child is also part of  the  right  under  Article  21  of  the
Constitution. He submitted that similarly the  right  to  freedom  of
speech and expression will include the right to choose the medium  of
instruction in which the child is to be educated and the  High  Court
was, therefore, right in coming to the conclusion that  compelling  a
child to be educated through a particular medium of instruction, such
as his mother  tongue,  is  violative  of  his  right  under  Article
19(1)(a) of the Constitution.

22.  Mr. Katarki next submitted that Article 30(1)  of  the  Constitution
confers on religious and linguistic minority communities the right to
establish and administer educational institutions of their choice and
the word “choice” clearly indicates that the State cannot  compel  an
institution established by a  religious  or  linguistic  minority  to
impart education in their institution to the children of classes I to
IV only in the mother tongue of the children.   In  support  of  this
submission, he relied on the decisions of this Court  in  In  re  The
Kerala Education Bill, 1957 [1959 SCR 995], Rev. Father W.  Proost  &
Ors. v. The State of Bihar & Ors. [1969 (2) SCR 73], D.A.V.  College,
etc. etc.  v.  State  of  Punjab  &  Ors.  (supra),  D.A.V.  College,
Bhatinda, etc. v.  The  State  of  Punjab  &  Ors.  (supra)  and  The
Ahmedabad St. Xavier’s College Society & Anr. v. State of  Gujarat  &
Anr. [(1974) 1 SCC 717].  He  submitted  that  even  the  educational
institutions which have  not  been  established  by  a  religious  or
linguistic minority have a right to freedom under  Articles  19(1)(g)
and 26 of the Constitution and in exercise of this right, they have a
right to choose the medium of  instruction  in  which  they  want  to
impart education to their students.  In support of this  proposition,
he relied on the majority judgment in T.M.A. Pai Foundation & Ors. v.
State of Karnataka & Ors. (supra) and P.A. Inamdar & Ors. v. State of
Maharashtra & Ors. [(2005) 6 SCC 537].

23.  Mr. G.R. Mohan, appearing for respondent  Nos.10  and  11  in  Civil
Appeal No.5186 of 2013, while adopting the aforesaid  submissions  of
Mr. Katarki, further submitted that Article 26(3)  of  the  Universal
Declaration of Human Rights adopted by  the  members  of  the  United
Nations including India provides that parents have a prior  right  to
choose the kind of education that shall be given to  their  children.
Mr. K.V.  Dhananjay,  learned  counsel  appearing  for  some  of  the
respondents, also adopted the submissions of Mr. Katarki.

Our answers to the five questions referred to us:

24. Question No.(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?”.

As this question is referred to us in context of our Constitution,  we  have
to answer this question by interpreting the expression  “mother  tongue”  as
used in the Constitution.  We must not forget that the Constitution  is  not
just an ordinary Act which the court has to interpret  for  the  purpose  of
declaring the law, but is a mechanism under which the laws are to  be  made.
As Kania C.J. observed in A.K. Gopalan v. State of Madras (AIR 1950 SC 27):
“Although we are to interpret words of the Constitution  on  the
same principles of interpretation as we apply  to  any  ordinary
law, these very principles of interpretation compel us  to  take
into account the nature  and  scope  of  the  Act  that  we  are
interpreting  –  to  remember  that  it  is  a  Constitution,  a
mechanism under which laws are to be made and  not  a  mere  Act
which declares what the law is to be.”

The only  provision  in  the  Constitution  which  contains  the  expression
“mother tongue” is Article 350A. We must therefore  understand  why  Article
350A  was  inserted  in  the   Constitution.    The   State   Reorganization
Commission, 1955,  made  recommendations  for  reorganizing  the  States  on
linguistic basis.  In Part  IV  of  its  report,  the  State  Reorganization
Commission, 1955, has  devoted  Chapter  I  to  “safeguards  for  linguistic
groups” and has recommended that the linguistic  minorities  of  the  States
should have the right to instruction in mother tongue.  In support  of  this
recommendation, the State Reorganization Commission,  1955,  has  relied  on
the resolution adopted at the  Provincial  Education  Ministers’  Conference
held in August, 1949, which had been approved by  the  Government  of  India
and which had  served  as  a  guide  to  the  State  Governments  in  making
arrangements for the education of the  school-going  children  whose  mother
tongue  is  different  from  the  regional  language.   This  resolution  is
extracted hereinbelow:
“The medium of instruction and examination in the  junior  basic
stage must be the mother tongue of  the  child  and,  where  the
mother tongue is different from the regional or State  language,
arrangements must be made for instruction in the  mother  tongue
by appointing at least one teacher, provided there are not  less
than 40 pupils speaking the language in the whole school  or  10
such pupils in a class.  The mother tongue will be the  language
declared by the parent or guardian to be the mother tongue.  The
regional or State language,  where  it  is  different  from  the
mother tongue, should be introduced not earlier than  Class  III
and not later than the end of the junior basic stage.  In  order
to facilitate the switching-over to  the  regional  language  as
medium in the secondary stage,  children  should  be  given  the
option of answering questions in their mother  tongue,  for  the
first two years after the junior basic stage.”

From  the  aforesaid  resolution  adopted  at   the   Provincial   Education
Ministers’ Conference held in August, 1949, and from the recommendations  of
the  State  Reorganization  Commission,  1955,  it  is  clear   that   while
recommending language as the basis  for  reorganization  of  the  States  in
India, the Commission wanted to ensure that the children of  the  linguistic
minority which had a language different from the language of the State  were
imparted education at the primary stage in  their  mother  tongue.   In  the
resolution adopted at the Provincial Education  Ministers’  Conference  held
in August, 1949, extracted above, it was  also  clarified  that  the  mother
tongue will be the language declared by the parent or  guardian  to  be  the
mother tongue.

25. After the recommendations of  the  State  Reorganization  Commission,
1955,  Article  350A  was  inserted  in  the  Constitution   by   the
Constitution (VIIth Amendment) Act.  Article 350A reads:

“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;
and the President may issue such directions to any State  as  he
considers necessary or proper for securing the provision of such
facilities.”

A mere reading of Article 350A of the Constitution would show that it  casts
a duty on every State and 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.
Hence, the expression ‘mother tongue’  in  Article  350A  means  the  mother
tongue of the linguistic minority group  in  a  particular  State  and  this
would obviously mean the language of  that  particular  linguistic  minority
group.

26. Mother tongue in the context of the  Constitution  would,  therefore,
mean the language of the linguistic minority in a State and it is the
parent or the guardian of the child who will decide what  the  mother
tongue of child is.  The Constitution nowhere  provides  that  mother
tongue is the language which the child is comfortable with, and while
this meaning of “mother tongue” may be  a  possible  meaning  of  the
‘expression’, this is not the meaning of  mother  tongue  in  Article
350A  of  the  Constitution  or  in  any  other  provision   of   the
Constitution and hence we cannot either expand the power of the State
or restrict a fundamental right by saying that mother tongue  is  the
language which the child is comfortable with.  We accordingly  answer
question no.(i).

27. Question No.(ii): Whether a student or a parent or a  citizen  has  a
right to choose a medium of instruction at primary stage ?

The High Court has held that the parent or a child has a  right  to  choose
medium of instruction in primary schools as part of the right to freedom of
speech and expression under Article 19(1)(a) of the  Constitution  and  the
right to choose the medium of instruction is also implicit in the right  to
education under Articles 21 and 21A of the Constitution.  We have to decide
whether these conclusions of the High Court that the parent or a child  has
a right to choose the medium of instruction in primary schools as  part  of
the right to freedom of speech and expression under Article 19(1)(a) of the
Constitution and also has a right to choose the medium  of  instruction  in
primary schools under Articles 21 and 21A of the Constitution are correct.

28. Article 19 of the Constitution is titled “Right to  Freedom”  and  it
states that all citizens shall have the right—
(a)  to freedom of speech and expression;
(b) to assemble peaceably and without    arms;
(c)  to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f)  x x x
(g) to practise any profession, or to carry on  any  occupation,
trade or business.

The word ‘freedom’ in Article  19  of  the  Constitution  means  absence  of
control by the State and Article 19(1) provides  that  the  State  will  not
impose controls on the citizen  in  the  matters  mentioned  in  sub-clauses
(a),(b),(c),(d),(e) and (g) of  Article  19(1)  except  those  specified  in
clauses 2 to  6  of  Articles  19  of  the  Constitution.   In  all  matters
specified in clause (1)  of  Article  19,  the  citizen  has  therefore  the
liberty to choose, subject only to restrictions in clauses  (2)  to  (6)  of
Article 19.

29.   One of the reasons for giving  this  liberty  to  the  citizens  is
contained in the famous essay ‘On Liberty’ by John Stuart  Mill.   He
writes:

“Secondly, the principle requires liberty of tastes  and  pursuits;
of framing the plan of our life to suit our own character; of doing
as we like, subject to such consequences  as  may  follow:  without
impediment from our fellow creatures, so long as what  we  do  does
not harm them, even though they should think our  conduct  foolish,
perverse, or wrong.”

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.  Harold J. Laski, who  was  not
prepared  to  accept  Mill’s  attempts  to  define  the  limits   of   State
interference, was also of the opinion that in some  matters  the  individual
must have the freedom of choice.  To quote a  passage  from  “A  Grammar  of
Politics” by Harold J. Laski:

“My freedoms are avenues of choice through which I may, as  I  deem
fit, construct for myself  my  own  course  of  conduct.   And  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.  That is not to say it will be  attained.
It is to say only that I alone can make that best  self,  and  that
without those freedoms I have not the means of  manufacture  at  my
disposal.”

Freedom or choice in the matter  of  speech  and  expression  is  absolutely
necessary for an individual to develop his personality in his  own  way  and
this is one reason, if not the only reason, why under  Article  19(1)(a)  of
the Constitution every citizen has been guaranteed the right to  freedom  of
speech and expression.

30. This Court has from time to time expanded the scope of the  right  to
freedom of speech and expression guaranteed under Article 19(1)(a) of
the  Constitution   by   consistently   adopting   a   very   liberal
interpretation.  In Romesh Thappar v. The State of Madras  [AIR  1950
SC 124], this Court  held  that  freedom  of  speech  and  expression
includes freedom of propagation of ideas which is ensured by  freedom
of circulation and in Sakal Papers (P) Ltd. v. Union  of  India  [AIR
1962 SC 305], this Court held that freedom of speech  and  expression
carries with it the right  to  publish  and  circulate  one’s  ideas,
opinions and views.  In Bennett Coleman  &  Co.  v.  Union  of  India
[(1972)2 SCC 788], this Court also held that  the  freedom  of  press
means right of citizens to speak, publish and express their views  as
well as right of people to read and  in  Odyssey  Communications  (P)
Ltd. v. Lokvidayan Sanghatana [(1988) 3  SCC  410],  this  Court  has
further held that freedom of speech and expression includes the right
of citizens to exhibit films on Doordarshan.

31. This Court also went into the question whether receiving  information
or education by a citizen was part of his right to freedom of  speech
and expression in Secretary, Ministry of Information &  Broadcasting,
Government of India & Ors. v. Cricket Association of  Bengal  &  Ors.
(supra) and held that the right to freedom of speech  and  expression
in Article 19(1(a) of the Constitution  will  not  only  include  the
right  to  impart  information  but  also  the   right   to   receive
information.  In his opinion, P.B. Sawant, J. observed that the right
to freedom of speech  and  expression  also  includes  the  right  to
educate, to inform  and  to  entertain  and  also  the  right  to  be
educated,  informed  and  entertained.   In  line  with  the  earlier
decisions of this Court, we are of the view that 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.  We cannot accept
the submission of the learned Advocate  General  that  the  right  to
freedom  of  speech  and  expression  in  Article  19(1)(a)  of   the
Constitution does not include the right of a child or on  his  behalf
his parent or guardian, to choose the medium of  instruction  at  the
stage of primary school.

32. We cannot also accept the submission of Mr. Bhat that if the right to
freedom  of  speech  and  expression  in  Article  19(1)(a)  of   the
Constitution is held to include the right to  choose  the  medium  of
instruction at the stage of primary school, then the State will  have
no  power  under  clause  (2)  of  Article  19  to   put   reasonable
restrictions on the right to freedom of speech and expression  except
in the interest of sovereignty and integrity of India,  the  security
of the State, friendly relations with foreign States,  public  order,
decency or morality or in relation to contempt of  court,  defamation
or incitement to an offence.  In our view,  the  Constitution  makers
did not intend to empower the State to impose reasonable restrictions
on the valuable right to  freedom  of  speech  and  expression  of  a
citizen except for the purposes mentioned in clause (2) of Article 19
of  the  Constitution  because  they  thought  that  imposing   other
restrictions on the freedom of speech and expression will be  harmful
to the development of the personality of the individual  citizen  and
will not be in the larger interest of the nation.  In  the  words  of
Pantanjali Shastri speaking for the majority of the judges in  Romesh
Thappar v. The State of Madras (supra):

“Thus, very  narrow  and  stringent  limits  have  been  set  to
permissible legislative abridgment of the right of  free  speech
and expression and this was doubtless  due  to  the  realisation
that freedom of speech and of the press lay at the foundation of
all  democratic  organisations,  for  without   free   political
discussion no public education,  so  essential  for  the  proper
functioning of the processes of popular Government, is possible.
A freedom of such amplitude might involve risks of abuse.   But
the framers of the Constitution may  well  have  reflected  with
Madison who was ‘the leading spirit in the  preparation  of  the
First Amendment of the Federal Constitution’, that “it is better
leave a few of its noxious branches to  their  luxuriant  growth
than, by pruning them  away,  to  injure  the  vigour  of  those
yielding the proper fruits” (Quoted in Near v.  Minnesotta,  283
U.S. 607 at 717-8).”

Therefore, once we come to the conclusion that the  freedom  of  speech  and
expression will include the right of a child to be educated  in  the  medium
of instruction of his choice, the only  permissible  limits  of  this  right
will be those covered under clause (2) of Article  19  of  the  Constitution
and we cannot exclude such right of a child from the  right  to  freedom  of
speech and expression only for the reason that the State will have no  power
to impose reasonable restrictions on this right of the  child  for  purposes
other than those mentioned in Article 19(2) of the Constitution.

33.  We may now consider whether the view taken by the High Court in  the
impugned judgment that the right to choose a medium of instruction is
implicit in the right to education under Articles 21 and 21A  of  the
Constitution is correct.  Article 21  of  the  Constitution  provides
that no person shall be deprived of  his  life  or  personal  liberty
except according to procedure established by law.  In Unni  Krishnan,
J.P. & Ors. v. State of Andhra Pradesh & Ors. (supra), a Constitution
Bench  of  this  Court  has  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.  Article 21A of the
Constitution  provides  that  the  State  shall  provide   free   and
compulsory education to all children of the age of  six  to  fourteen
years in such manner as the State  may,  by  law,  determine.   Under
Articles 21 and 21A of the Constitution, therefore,  a  child  has  a
fundamental right to claim from the State free education upto the age
of 14 years.  The language of Article 21A of the Constitution further
makes it clear that such free education which a child can claim  from
the State will be in a manner as the State may,  by  law,  determine.
If, therefore, the State determines by law that in schools where free
education is provided under Article  21A  of  the  Constitution,  the
medium of instruction would  be  in  the  mother  tongue  or  in  any
language, the child cannot claim as of  right  under  Article  21  or
Article 21A of the Constitution that he has a  right  to  choose  the
medium of instruction in which the education should  be  imparted  to
him by the State.  The High Court, in our considered opinion, was not
right in coming to the conclusion that the right to choose  a  medium
of instruction is implicit in the right to education  under  Articles
21 and 21A of the Constitution.   Our  answer  to  Question  No.(ii),
therefore, is 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)  and  not  under  Article  21  or
Article 21A of the Constitution.

34.  Question No.(iii): Does the imposition of mother tongue in  any  way
affect the fundamental rights under Article 14, 19, 29 and 30 of  the
Constitution?

As the High Court has not come to the conclusion in  the  impugned  judgment
that imposition of mother tongue in any way affects  the  fundamental  right
under Article 14 of the Constitution, it is not necessary for us  to  decide
this question. We will have to decide whether imposition  of  mother  tongue
in any way affects the fundamental rights under Articles 19, 29  and  30  of
the Constitution.

35. Articles 29(1) and 30(1) of the Constitution are quoted hereinbelow:

29. Protection of interests of minorities:- (1)  Any  section  of  the
citizens residing in the territory of India or any part thereof having
a distinct language, script or culture of its own shall have the right
to conserve the same.

30.Right  of  minorities  to  establish  and  administer   educational
institutions:- (1)  All  minorities,  whether  based  on  religion  or
language, shall have the right to establish and administer educational
institutions of their choice.”

A reading of clause (1) of Article 29 of the Constitution provides that  any
section of the citizens residing in the  territory  of  India  or  any  part
thereof having a distinct language, script or culture of its own shall  have
the right to conserve the same and clause (1) of Article  30  provides  that
all minorities, whether based on religion or language, shall have the  right
to establish and administer educational institutions of their choice.

36. In D.A.V. College, Bhatinda, etc. v.  The  State  of  Punjab  &  Ors.
(supra), the Punjabi  University  in  exercise  of  its  power  under
Section 4(2) of Punjabi University Act (35 of 1961), made Punjabi the
sole medium of instruction and examination in all colleges affiliated
under Punjabi University.  It was contended inter  alia  before  this
Court that prescription of such medium of instruction and examination
in a language which is not the mother tongue of  the  minority  which
has established the  educational  institution  is  violative  of  the
rights conferred under clause (1) of Article 29  and  clause  (1)  of
Article 30 of the Constitution and the  Constitution  Bench  of  this
Court has upheld this contention in the following words:

“The  right  of  the  minorities  to  establish  and  administer
educational institutions of their choice would include the right
to have a choice of the medium of instruction also  which  would
be the result of reading Article 30(1) with Article 29(1).”

Thus, a Constitution Bench of this Court in D.A.V. College,  Bhatinda,  etc.
v. The State of Punjab & Ors. (supra) has already held that minorities  have
a right to establish  and  administer  educational  institutions  of  ‘their
choice’,  and therefore they have the choice of  medium  of  instruction  in
which education  will  be  imparted  in  the  institutions  established  and
administered by them.

37. The contention of the learned Advocate General, however, is that  the
aforesaid decision and  other  decisions  of  this  Court  have  been
rendered in cases where the State imposed a medium of instruction  in
a language different from the language of the minority community, but
if the State prescribes the medium of instruction to  be  the  mother
tongue of the child, which is the language of the minority community,
there is no violation of the right of the linguistic  minority  under
Article 30(1) of the Constitution.  We do not find any merit in  this
contention because this Court has also held that the “choice” of  the
minority community  under  Article  30(1)  need  not  be  limited  to
imparting education in the language of the minority community.  In re
The Kerala Education Bill, 1957 (supra), S.R. Das,  CJ,  writing  the
majority opinion of a seven Judge Bench of this Court, held:

“23. Having disposed of the minor point referred  to  above,  we
now take up the main argument  advanced  before  us  as  to  the
content of Art. 30(1).  The first point  to  note  is  that  the
article gives certain rights not only  to  religious  minorities
but also to linguistic minorities.  In the next place, the right
conferred  on  such  minorities  is  to  establish   educational
institutions of their choice.  It does not say  that  minorities
based on religion should establish educational institutions  for
teaching religion only, or  that  linguistic  minorities  should
have  the  right  to  establish  educational  institutions   for
teaching their language only.  What the article says  and  means
is that the religious and the linguistic minorities should  have
the right to establish educational institutions of their choice.
There is no limitation placed on the subjects to be  taught  in
such  educational  institutions.   As   such   minorities   will
ordinarily desire that  their  children  should  be  brought  up
properly and efficiently and be eligible for  higher  university
education and go out in  the  world  fully  equipped  with  such
intellectual attainments as will make them fit for entering  the
public services, educational institutions of their  choice  will
necessarily  include  institutions  imparting  general   secular
education also.  In other words, the article leaves it to  their
choice to establish such educational institutions as will  serve
both purposes, namely, the purpose of conserving their religion,
language or culture, and also the purpose of giving a  thorough,
good general education to their children.”

38. We may now examine whether  an  unaided  non-minority  school  has  a
similar right  to  choose  a  medium  of  instruction  under  Article
19(1)(g) of the Constitution at  the  primary  school  stage.   Under
Article 19(1)(g) of the Constitution, a  citizen  has  the  right  to
practise any profession, or to carry  on  any  occupation,  trade  or
business.  In T.M.A. Pai Foundation & Ors. v. State  of  Karnataka  &
Ors. (supra), Kirpal C.J. writing the majority  judgment  interpreted
this right under Article 19(1)(g) of the Constitution to include  the
right to establish and run educational institutions.  In paragraph 25
of the aforesaid judgment in T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Ors. (supra), the majority judgment held:

“The establishment and running  of  an  educational  institution
where a large number of persons  are  employed  as  teachers  or
administrative staff, and an activity is carried on that results
in the imparting of knowledge to the students, must  necessarily
be regarded as an occupation, even if there  is  no  element  of
profit  generation.   It  is  difficult   to   comprehend   that
education,  per  se,  will  not  fall  under  any  of  the  four
expressions in  Article  19(1)(g).   “Occupation”  would  be  an
activity of a person undertaken as a means of  livelihood  or  a
mission in life. ”

Thus, the word “occupation” in Article  19(1)(g)  of  the  Constitution  was
interpreted by the majority judgment of this Court in T.M.A. Pai  Foundation
& Ors. v. State of Karnataka & Ors. (supra), to include the  activity  which
results in imparting of knowledge to  the  students  even  if  there  is  no
element of profit generation in  such  activity.   However,  unlike  Article
30(1)  of  the  Constitution,  Article  19(1)(g)  does  not  have  the  word
“choice”.  The absence of the word  “choice”,  in  our  considered  opinion,
does not make a material difference because we find that Article 19  of  the
Constitution is titled “Right to Freedom” and the word “freedom” along  with
the word “any” before the word  “occupation”  in  Article  19(1)(g)  of  the
Constitution would mean that  the  right  to  establish  and  administer  an
educational institution will include the right of a citizen to  establish  a
school for imparting education in a medium of  instruction  of  his  choice.
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.  We  are  thus  of  the  considered
opinion that a private unaided school which is not  a  minority  school  and
which does not enjoy the protection of  Articles  29(1)  and  30(1)  of  the
Constitution can choose a medium of instruction for imparting  education  to
the children in the school.

39.  It is, however, well settled that all educational  institutions  can
be subject to regulations by the State for inter alia maintenance  of
proper academic standards.  While discussing the right  to  establish
and administer an educational institution under Article  19(1)(g)  of
the Constitution, Kirpal C.J., speaking for the majority of Judges in
T.M.A. Pai Foundation & Ors. v. State of Karnataka  &  Ors.  (supra),
held:

“The right  to  establish  an  educational  institution  can  be
regulated; but such regulatory measures must, in general, be  to
ensure the maintenance of proper academic standards,  atmosphere
and  infrastructure  (including   qualified   staff)   and   the
prevention  of  maladministration  by   those   in   charge   of
management……”

Again, in the majority judgment in T.M.A. Pai Foundation & Ors. v. State  of
Karnataka & Ors. (supra), Kirpal  C.J.  while  discussing  the  right  of  a
minority educational  institution  protected  under  Article  30(1)  of  the
Constitution;

“……It  was  permissible  for  the   authorities   to   prescribe
regulations, which must be  complied  with,  before  a  minority
institution could seek or retain  affiliation  and  recognition.
But it  was  also  stated  that  the  regulations  made  by  the
authority should not impinge upon the minority character of  the
institution.  Therefore, a balance has to be  kept  between  the
two objectives – that of ensuring the standard of excellence  of
the institution,  and  that  of  preserving  the  right  of  the
minorities  to  establish  and  administer   their   educational
institutions……”

Thus, whether it is a private unaided institution enjoying the  right  under
Article 19(1)(g) of the Constitution or whether it is a private  institution
enjoying the special protection of  a  minority  institution  under  Article
30(1) of the Constitution, the State  has  the  power  to  adopt  regulatory
measures which must satisfy  the  test  of  reasonableness.   Moreover,  the
State may exercise this regulatory power  either  by  making  a  law  or  by
issuing an executive order.

40.  The learned Advocate General for the State of  Karnataka  relied  on
the judgment of this Court in  Gujarat  University  &  Anr.  v.  Shri
Krishna Ranganath Mudholkar & Ors. (supra) to submit that this  power
to prescribe regulations for maintaining the standards  of  education
would include the power to prescribe the medium of  instruction.   We
quote the relevant portion of the decision of the Constitution  Bench
of this Court in Gujarat University & Anr. v. Shri Krishna  Ranganath
Mudholkar & Ors. (supra) on which he has placed reliance:

“23.…..The power to legislate in respect of primary or secondary
education is exclusively vested in the States by item  No.II  of
List II, and power to legislate  on  medium  of  instruction  in
institutions of primary or secondary  education  must  therefore
rest with the State Legislatures.  Power to legislate in respect
of medium of instruction is, however, not  distinct  legislative
head; it resides with the State Legislatures in which the  power
to legislate on education is vested, unless it is taken away  by
necessary intendment to the contrary.  Under items 63 to 65  the
power to legislate in respect of medium  of  instruction  having
regard to the width of those items, must be deemed  to  vest  in
the  Union.   Power  to  legislate  in  respect  of  medium   of
instruction, in so far it has a direct bearing and  impact  upon
the legislative  head  of  co-ordination  and  determination  of
standards in institutions of higher education  or  research  and
scientific and technical institutions, must also  be  deemed  by
item 66 List I to be vested in the Union.”

From the aforesaid quotation, we find that the Constitution Bench  has  held
that under the scheme of distribution  of  legislative  powers  between  the
States and the Union, the power  to  legislate  in  respect  of  primary  or
secondary education is exclusively vested in  the  States  and  has  further
held that in exercise of this power the State can prescribe  the  medium  of
instruction.  The Constitution Bench, however, has not held that this  power
of the State to prescribe the medium of instruction in primary or  secondary
schools can be exercised in contravention of  the  rights  guaranteed  under
Article 19(1)(a) and 19(1)(g) of the Constitution.  The  Constitution  Bench
has only held that if the medium of instruction  has  a  direct  bearing  or
impact  on  the  determination  of  standards  in  institutions  of   higher
education, the legislative power can be exercised by the Union to  prescribe
a medium of instruction.  For example, prescribing English as  a  medium  of
instruction in subjects of higher education for  which  only  English  books
are available and which can only be properly taught in English  may  have  a
direct bearing and impact on the determination of  standards  of  education.
Prescribing the medium of instruction in schools to be mother tongue in  the
primary school stage in classes I to IV has, however, no direct bearing  and
impact on the determination of standards of education, and will  affect  the
fundamental  rights  under   Articles   19(1)(a)   and   19(1)(g)   of   the
Constitution.

41. We may now consider the decision of the Division Bench of this  Court
in English Medium Students Parents Association v. State of  Karnataka
& Ors. (supra) on which reliance has been  placed  by  the  State  of
Karnataka.  In paragraph 20 at page 560 of the aforesaid decision  as
reported in the SCC, this Court has held that all educational experts
are uniformly of the opinion that pupils should begin their schooling
through the medium of their mother tongue and  the  reason  for  this
opinion is that if the tender minds of the children are subject to an
alien medium, the learning process becomes unnatural and  inflicts  a
cruel strain on the children which makes the entire learning  process
mechanical, artificial and torturous but if the  basic  knowledge  is
imparted through mother tongue, the  young  child  will  be  able  to
garner knowledge  easily.   In  paragraph  17  at  page  559  of  the
aforesaid judgment, the Division Bench of this Court has  also  given
the reasons why it did not find the impugned Government order  to  be
ultra vires Articles 14, 29(1) and 30(1) of the Constitution.   These
reasons are quoted hereinbelow:
“16. In view of the liberty given to the State of Karnataka  the
present GO bearing No.87 PROU SE BHA 88,  Bangalore  dated  June
19, 1989 (quoted above) has come to be  passed.   A  corrigendum
also came to be issue on June 22, 1989 which reads as under:

“For para (i) of Order portion of the  abovesaid  Government
Order dated June 19, 1989 i.e., from  the  words  ‘From  Ist
standard …. subject to study’ the following  para  shall  be
substituted:

‘From Ist standard to IVth standard, where  it  is  expected
that  normally  mother  tongue  will  be   the   medium   of
instruction, only one  language  from  Appendix  I  will  be
compulsory subject of study.’ “

17. A careful reading of the above  GO  would  clearly  indicate
that the element of compulsion at the primary stage is no longer
there because the GO is unequivocal when it  says  from  Ist  to
IVth standards mother tongue will be the medium of  instruction,
only one language from Appendix I will be compulsory subject  of
study.  From IIIrd standard onwards Kannada will  be  an  option
subject for non-Kannada speaking students.  It is to  be  taught
on voluntary basis there being no examination at the end of  the
year in Kannada language……”

Thus, the reasons given by the Division Bench of this Court  to  uphold  the
Government order of the State of Karnataka dated  19.06.1989  are  that  the
Government had issued a corrigendum on  22.06.1989  and  a  reading  of  the
Government order after the corrigendum would show that there was no  element
of  compulsion  at  the  primary  stage  any  longer  that  the  medium   of
instruction from I standard to IV standard would be in mother  tongue.   The
decision of this Court in English Medium  Students  Parents  Association  v.
State of Karnataka & Ors. (supra), is, therefore, not an authority  for  the
proposition that prescription of mother tongue in classes I  to  IV  in  the
primary school can be compelled by the State as  a  regulatory  measure  for
maintaining the standards of education.

42. We are of the considered opinion  that  though  the  experts  may  be
uniform in their opinion that children studying in classes I to IV in
the primary school can learn better  if  they  are  taught  in  their
mother  tongue,  the  State  cannot  stipulate  as  a  condition  for
recognition that the medium of instruction  for children studying  in
classes I to IV in minority schools protected  under  Articles  29(1)
and 30(1) of the Constitution and in private unaided schools enjoying
the right to carry on any occupation under Article  19(1)(g)  of  the
Constitution would be the mother  tongue  of  the  children  as  such
stipulation.  We accordingly answer question No.(iii) referred to  us
and hold that the imposition of mother tongue affects the fundamental
rights under Articles 19, 29 and 30 of the Constitution.

43. Question No.(iv):  Whether  the  Government  recognized  schools  are
inclusive of both government-aided  schools  and  private  &  unaided
schools?”

In Unni Krishnan, J.P. & Ors. v. State of Andhra  Pradesh  &  Ors.  (supra),
Jeevan Reddy J. writing the judgment for himself  and  for  Pandian  J.  has
held  in  paragraph  204  at  page  753  that  the  right  to  establish  an
educational institution does not carry with it the right to  recognition  or
the right to affiliation and that recognition and affiliation are  essential
for  meaningful  exercise  of  the  right  to   establish   and   administer
educational institutions.  In this judgment, the two Judges  of  this  Court
have also held that recognition may be granted either by the  Government  or
by  any  other  authority  or  body  empowered  to  accord  recognition  and
affiliation  may  be  granted  by  the  academic  body  empowered  to  grant
affiliation.  In this judgment, the two Judges of this  Court  have  further
held that it is open to a person to establish  an  educational  institution,
admit  students,   impart   education,   conduct   examination   and   award
certificates but the educational institution has no  right  to  insist  that
the  certificates  or  degrees  awarded  by  such  institution   should   be
recognized by the State and therefore  the  institution  has  to  seek  such
recognition or affiliation from the appropriate agency.   In  the  aforesaid
case of Unni Krishnan, J.P. &  Ors.  v.  State  of  Andhra  Pradesh  &  Ors.
(supra), S. Mohan J.  in  his  concurring  judgment  has  also  observed  in
paragraph 76 at page 693 that recognition is for the purpose  of  conforming
to the standards laid down by the State and affiliation is  with  regard  to
the syllabi and the courses of study  and  unless  and  until  they  are  in
accordance with the  prescription  of  the  affiliating  body,  certificates
cannot be conferred and hence the  educational  institution  is  obliged  to
follow the syllabi and the course of the study.  These  views  expressed  by
the three Judges in the Constitution Bench judgment of this  Court  in  Unni
Krishnan, J.P. & Ors. v. State of Andhra Pradesh &  Ors.  (supra)  have  not
been departed from in the majority judgment in T.M.A. Pai Foundation &  Ors.
v. State of Karnataka & Ors. (supra).  Kirpal C.J. writing the  judgment  in
T.M.A. Pai Foundation (supra) on behalf of  the  majority  Judges  has  held
that the fundamental right to establish an  educational  institution  cannot
be confused with the right to ask for recognition or affiliation.  From  the
aforesaid discussion of the law as developed by  this  Court,  it  is  clear
that all schools, whether they are established by the Government or  whether
they are aided by the Government or  whether  they  are  not  aided  by  the
Government,  require  recognition  to  be  granted  in  accordance  of   the
provisions  of  the  appropriate  Act  or  Government  order.   Accordingly,
Government  recognized  schools  will  not  only  include  government  aided
schools but also unaided schools which have been granted recognition.

44. Question No.(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 ?

We have extracted Article  350A  of  the  Constitution  above  and  we  have
noticed that in this Article it is 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.   We
have already held that a linguistic minority  under  Article  30(1)  of  the
Constitution has the right to choose the  medium  of  instruction  in  which
education will be imparted in the primary stages of the school which it  has
established.  Article 350A therefore cannot be interpreted  to  empower  the
State to compel a linguistic minority to choose its mother tongue only as  a
medium of instruction in a primary school established by it in violation  of
this fundamental right under Article 30(1).  We accordingly hold that  State
has  no  power  under  Article  350A  of  the  Constitution  to  compel  the
linguistic minorities to choose their mother tongue  only  as  a  medium  of
instruction in primary schools.

45.    In view of our answers to the questions referred to  us,  we  dismiss
Civil Appeal Nos.5166-5190 of 2013, 5191-5199  of  2013,  the  Civil  Appeal
arising out of S.L.P. (C) No.32858 of 2013 and Writ Petition (C)  No.290  of
2009.  There shall be no order as to costs.

…..……………..……………………CJI.
(R.M. Lodha)

…..……………..……………………….J.
(A. K. Patnaik)

…..……………..……………………….J.
(Sudhansu Jyoti Mukhopadhaya)

…..……………..……………………….J.
(Dipak Misra)

……….………….……………………..J.
(Fakkir Mohamed Ibrahim Kalifulla)
New Delhi,
May 06, 2014.

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Arizona Vs California in Cauvery dispute

This the text of Karnataka’s reply to Tamil Nadu’s IA in the latest Cauvery river water dispute… Karnataka cites a US Supreme Court verdict in a case between Arizona and California…

IN THE SUPREME COURT OF INDIA
(Civil Original Jurisdiction)

I.A. No.5 Of 2012
In
O.S. No.3 of 2002

In the matter of:
State of Tamil Nadu … Applicant
Versus
State of Karnataka & Ors. … Respondents

To:

The Hon’ble Chief Justice of India
and His Companion Judges of the
Supreme Court of India

REPLY ON BEHALF OF THE RESPONDENT STATE OF KARNATAKA TO THE I.A. No.5 FILED BY THE STATE OF TAMIL NADU.

MOST RESPECTFULLY SHOWETH:

1. This reply on behalf of the respondent State of Karnataka is filed opposing the above I.A. No.5 filed by the State of Tamil Nadu.

2. At the outset, the respondent State of Karnataka submits that the application is liable to be dismissed, since:

i) The State of Tamil Nadu filed I.A. 4 on 20.07.2012 inter alia for directions to the Cauvery River Authority (CRA) to perform its “obligations” by framing the distress formula for “sharing of flows of the river Cauvery”.

ii) The Union of India informed this Hon’ble Court on 07.09.2012 that CRA meeting was scheduled on 19.09.2012. The Order dated 07.09.2012 is here to enclosed and marked as ANNEXURE-R-1.

iii) Finally, by order dated 10.09.2012, this Hon’ble Court disposed of I.A. 4, after accepting the statement of Counsel for Karnataka which reads as follows:

“From the 4th September 2012 onwards 7,000 plus cusecs is the daily flow measured at Biligundlu. The State of Karnataka states that on and from 12.09.2012, 10,000 cusecs will be ensured at Biligundlu till and only until 20th September 2012, when the CRA meets on 19th September 2012 and takes a decision after considering the case of both parties.”

The Order dated 10.09.2012 is here to enclosed and marked as ANNEXURE-R-2.

iv) The Orders passed on I.A.4 reads as follows:

“… As already noted in our order dated 7th September, 2012, a meeting of the Cauvery River Authority (for short “the CRA”), under the Chairmanship of Hon’ble Prime Minister is scheduled for 19th September, 2012 and, therefore, the second and third prayers already stand substantially addressed.
Insofar as a direction with regard to the release of water by the State of Karnataka from its reservoirs, during the current year is concerned, we have heard learned Senior Counsel for both the States at some length. During the course of hearing learned senior counsel appearing for the State of Karnataka very fairly states that since a meeting of the CRA is already fixed, as a goodwill gesture and by way of purely an ad hoc arrangement, the State of Karnataka is willing to release 10,000 cusecs flow of water at Biligundlu from 12th September 2012, only till 20th September, 2012. We order accordingly.
We expect and hope that the meeting of the CRA as scheduled, takes place and some amicable solution to the problem highlighted in this application is found.
We further clarify that if for any unforeseen reason, the meeting of the CRA is not held on 19th September, 2012 or no decision is taken in the said meeting, it will be open to both the parties to take appropriate steps in this behalf as may be advised.
I.A. No.4 stands disposed of in the above terms”. (Annexure-R-2)

v) As scheduled, the CRA met on 19.09.2012 and passed the following order viz.,

“I have carefully listened to the points made by the Chief Ministers of Tamil Nadu, Karnataka and Pondicherry.
We are all aware that the arrival of monsoon was late in the country and many States have received less than expected rainfall.
As on 10th September 2012, I am informed that the deficit rainfall in Tamil Nadu is 21% while Karnataka has received 18% less rainfall.
I am also informed that the Karnataka was in a position to sow only 74.7% of its normal agriculture area, while Tamil Nadu could sow only 33.3% of its normal agricultural area.
In this situation, when both the States are in distress, it is natural to expect that this distress would be shared among the basin States. The existing reservoirs have to be so regulated that the requirements are optimally met in both the upper and lower riparian States.
Karnataka has suggested that the State is facing severe drought. Once the south west monsoon ends no significant inflows of water are expected till south west monsoon next year. A minimum storage of water is essential to provide drinking water to its cities, and for minimum irrigation needs. Tamil Nadu too, has emphasized the grave water situation faced by it. It seeks immediate release of water as per the terms of the Award, and states that the water is essential if the samba crop in the State is to be saved. It wants CRA to ensure that the water is released by Karnataka. Pondicherry has also spoken on similar lines.

After careful consideration of all the points and the requirement of the States and since consensus has eluded the parties, I find it appropriate that Karnataka releases 9000 cusecs of water daily from 20th September to 15th October 2012. It has been releasing 10,000 cusecs daily from 12th September 2012 on the directions of the Supreme Court.

The Cauvery Monitoring Committee shall review the position by 15th October 2012 so that appropriate releases beyond 15th October 2012 may be decided in consultation with the State Governments.
The matter may be brought before the CRA, if required”.
Annexure- IV to the Application
vi) Having invited the decision from the CRA by approaching this Hon’ble Court, the State of Tamil Nadu is now precluded and estopped from challenging the decision of the CRA before this Hon’ble Court.

vii) The statement in the prayer (ii) that the distress sharing formula is “evolved by the Central Water Commission and finalized by the Cauvery Monitoring Committee in its 24th meeting held on 04.12.2009 …” is incorrect and misleading as submitted by the State of Karnataka in its reply dated 24.08.2012 to I.A. No.4. Neither the Central Water Commission (CWC) was asked to frame any distress sharing formula nor has it even evolved any such formula. Even the statement that Cauvery Monitoring Committee (CMC) has finalized the distress formula in its 24th meeting held on 04.12.2009 is totally contrary to the record, as in the said meeting it is specifically recorded (see Annexure-X colly to the application) that –

“Chairman, CWC mentioned that in view of observations of the states, the Distress Sharing Formula as approved by the Committee headed by Commissioner (PR) MOWR with representatives from the states as members along with the stand of the Government of Karnataka may be referred to CRA for consideration.

After discussions, it was decided that it would be appropriate to refer to the above to CRA for consideration when noticeable distress condition occurs in future”.

viii) The CRA has acted on “practical difficulties” which is the overriding consideration for sharing the flows. The Tribunal itself has stated in various paragraphs of its Final Report as follows:

(a) “28. In case the yield is less in a distress year, the allocated shares shall be proportionately reduced amongst the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry by the Regulatory Authority” (page 212, Vol. V)

(b) “29 … In view of such practical difficulties, the Cauvery Management Board / Regulatory Authority shall have the liberty to alter monthly and/or ten-daily schedule of releases while making effort to meet the seasonal allocations for the crop as far as possible, in consultation with the party States”. (page 213, Vol. V).

The copy of pages 212 & 213 of Volume-V of Report of the Cauvery Water Dispute Tribunal is here to enclosed and marked as ANNEXURE-R-3.

3. Without prejudice to aforesaid, the demand for release of 48 tmc at the rate of 2 tmc per day from the reservoirs in Karnataka in prayer (i) is totally unjust. If 48 tmc are given to Tamil Nadu out of the present total live storage of 69 tmc available in Karnataka, it will be barely left with 20 tmc. Even the present storage of 69 tmc coupled with the expected inflow till the end of January 2013 will not be sufficient to meet Karnataka’s total requirement of 140 tmc for irrigation and drinking water requirement, including drinking water for Bangalore city with a population of about
8.4 million.

4. The entire plea of Tamil Nadu is misplaced and highly inequitable. Tamil Nadu did not open Mettur gates till 17th September 2012 though it had
storages of 46.2 tmc. At the end of September, Tamil Nadu has drawn 30 tmc from Mettur out of requirement of 90 tmc during the bad year as was done in 1987-88. The remaining requirement of 60 tmc can be met from the present storage of 36 tmc coupled with the expected inflow of a minimum of 40 tmc till the end of January. Hence, there is sufficient water to sustain the Samba rice crop under the Mettur system in Tamil Nadu.

Parawise reply:
Without prejudice to the aforementioned, parawise replies are as follows:
5. In re para 1: The State of Karnataka denies that it has violated the direction of CRA dated 19.09.2012 as alleged. The flows given in the Chart below show that on an average the orders of this Hon’ble Court made on 10.09.2012 for release of 10,000 cusecs at Biligundlu (based on the goodwill gesture of Karnataka) and the decision of the CRA passed on 19.09.2012 for release of 9,000 cusecs were complied as on 25.09.2012 – the date of this application moved by Tamil Nadu:
STATEMENT SHOWING THE FLOWS ORDERED BY
HON’BLE SUPREME COURT ON 10.09.2012 AND CRA ON 19.09.2012 AND OBSERVED FLOWS AT CWC GAUGE SITE BILIGUNDLU ON
INTER STATE BORDER

Sl.
No. Date flows ordered Flows observed at Biligundlu, CWC gauge site Remarks
1 12.09.2012 10000 8871 As per Hon’ble Supreme Court order of 10th Sept. 2012 after considering Karnataka’s written undertaking of 10.09.2012 in response to Court’s request to suggest something as a goodwill gesture
2 13.09.2012 10000 8370
3 14.09.2012 10000 9825
4 15.09.2012 10000 10489
5 16.09.2012 10000 13183
6 17.09.2012 10000 14370
7 18.09.2012 10000 14437
8 19.09.2012 10000 14454
Total from 12th to 20th Sept. 80000 93999
9 20.09.2012 9000 13211
10 21.09.2012 9000 11064 As per directions of CRA on 19.09.2012 based on the communication in Secretary’s letter dated 20.09.2012
11 22.09.2012 9000 6720
12 23.09.2012 9000 4912
13 24.09.2012 9000 4238
14 25.09.2012 9000 4443
Sub Total 20.09.2012 to 25.09.2012 54000 44588
Grand Total 12.09.2012 to 25.09.2012 134000 138587

6. In re para 2: No comments.

7. In re para 3: The initial shortfalls as pointed out in para 3 occurred because of the average distance between reservoirs in Karnataka and interstate border at Biligundlu is about 225 kms. The water released from the reservoirs takes at least about 48 hours to reach Biligundlu. However, the initial shortages were made good subsequently as admitted and in fact at the end of 20.09.2012, Karnataka ended up delivering surplus flows. The Chart at para 7 above shows this clearly.

8. In re para 4: The contents of this para relate to the submissions made by the Chief Minister of Tamil Nadu before the Cauvery River Authority (CRA) which are incorrect and denied. The Chief Minister of Karnataka made his submissions pointing out to the extreme hardship faced by Karnataka to meet the minimum requirement for irrigation and drinking water, particularly the drinking water of Bangalore City. The State had filed also a Memorandum on 18.09.2012. The copy of the Memorandum dated 18.09.2012 and Speech of the Chief Minister of Karnataka are here to enclosed and marked as ANNEXURE-R-4 (colly).

9. In re para 5: The contents of this paragraph are misleading. The distress formula worked out by the sub group in 2003 was based on the interim order of the Tribunal dated 25.06.1991 read with order dated 03.04.1992. However, in the Final Order dated 05.02.2007, the “practical difficulties” are the overriding considerations in sharing the distress. Therefore, what was worked out by the sub group in 2003 does not hold good which in any case is highly inequitable and contrary to the decision of the CRA taken in its 3rd meeting held on 10.10.2001 for framing “acceptable and equitable procedure…”. The CRA as an implementing body is expected to act on “practical difficulties” and not on hard and fast rule or formula. These “practical difficulties” include consideration of water resources available in Karnataka by south-west monsoon, the potential water from north-east rainfall in Tamil Nadu and alternate resources of groundwater in the Delta region of Tamil Nadu. The water on an average has been ensured as shown in the Statement in para 5 above between 12.09.2012 and 25.09.2012 (the date of I.A.5/2012).

10. In re para 6: The State of Karnataka filed its Review Petition before the CRA under Clause-3(3) of the Cauvery River Authority (Conduct of Business) Rules 1998 read with provisions of Sec.6-A(2)(i) of the Inter-State River Water Disputes Act, 1956. Entertaining the Petition, the Secretary to the CRA has called Tamil Nadu to send its comments by letter dated 21.09.2012. But, no comments appeared to have been filed. Even if filed, have not been supplied to Karnataka. The meeting of CMC is now scheduled on Monday 08.10.2012.

11. In re para 7: The State of Karnataka denies that it has willfully defied the orders of this Hon’ble Court.

12. In re para 8: The submissions in para 8 are misleading. The Tribunal in its order dated 19.12.1995 has specifically clarified that weekly shortfall or monthly shortfalls have to be cleared before the close of the season, which is December. Therefore, the non delivery of weekly and monthly quota mentioned in the interim order which was passed without any investigation does not amount to violation at all. The Order dated 19.12.1995 is here to enclosed and marked as ANNEXURE-R-5.

13. In re para 9: The submissions in this para are misleading. None of the provisions of the Final Order of the Tribunal dated 05.02.2007 prohibit Karnataka from using water for summer irrigation, if it were available. The only obligation imposed in the Final Order is the delivery of 192 tmc at the interstate border Biligundlu in a normal year. After meeting the said flow, which has been met in the water year of 2011-12, Karnataka is at liberty to utilize the surplus water for its summer irrigation or any other purpose. In fact, this has been the understanding of Tamil Nadu in the water years 2007-08 onwards. The present allegation is a belated allegation and moreover it has no foundation at all. The shortfalls at Mettur worked out on the basis of alleged distress formula are denied. The US Supreme Court in the case of Arizona Vs. California (10 L Ed 2d 542 @ 574) has rightly observed that –

“While pro-rata sharing of water shortages seems equitable on its face, more considered judgment may demonstrate quite the contrary”.

The copy of the US Supreme Court case of Arizona Vs. California (10 L Ed 2d 542 @ 574)is here to enclosed and marked as ANNEXURE-R-6.

The Mettur data is always underestimated and such under estimation comes to 14% as pointed out on the basis of undisputed data in para 4.2 of the reply dated 24.08.2012 to I.A. 4. The distress is worked out having regard to the practical difficulties and not on a pro rata basis as pointed out in the Final Order of the Tribunal.

14. In re para 10: The State of Karnataka denies that it has thwarted the finalization of the distress formula. As submitted in the reply dated 24.08.2012 to I.A. 4 at paras 4.1 (a) to 4.1(g), the distress formula was worked out by the sub group in the context of the interim order which does not apply to the final order. Moreover, Tamil Nadu itself has agreed to the framing of a distress formula when the situation arises in the 24th meeting of the CMC dated 04.12.2009 as quoted above.

15. In re para 11: The submissions in this para are denied. No water is deprived to Tamil Nadu as alleged. During distress, the water should be shared on the overriding consideration of “practical difficulties”. The accounting of water is to be done at the end of season in December with an interim assessment at the end of September when the south-west monsoon is fairly known. The distress situation in Karnataka is to the extent of 48% as submitted in the Sur Rejoinder dated 05.09.2012 [at para 2.1(c)] which is not denied at all by Tamil Nadu in its response dated 06.09.2012. The irrigation in Karnataka is badly affected. The sowing could take place in only about 65% of the area. Whereas, in Tamil Nadu, the Kuruvai crop even if left uncultivated, the Samba crop can be cultivated in the very same area between October to January as it has been done in the past particularly in 1987-88 which is a matter of record. Therefore, there is no loss at all in Tamil Nadu due to the distress situation in the basin. It is denied that the deficit in realization in Mettur dam has mounted to 103.12 tmc.

16. In re para 12: The submissions are misleading. There is neither any urgency nor any ground made out for filing this application. The entire plea for 48 tmc is highly unreasonable and inequitable. If such demand were to be met out of the present storage of 69 tmc in Karnataka, the entire irrigation in Karnataka and drinking water supplies would be badly affected leaving the farmers in a water starved condition, but residents of Bangalore, Mysore and other towns etc without any drinking water.

17. In re para 13: The contents of para 13 are denied as incorrect and misleading. These contents are also repetitive.

18. In re para 14: No reply as this para is incomplete.

19. In re para 15: Matter of record

20. In re para 16: The Tribunal did not rule on the pro rata formula. It merely suggested such principle and asked the parties to apply for orders. In fact, when Tamil Nadu applied for orders, the Tribunal did not apply pro rata formula even in its interim order dated 19.12.1995 for the year 1995-96.

21. In re para 17: No comments.

22. In re para 18: The orders passed by this Hon’ble Court in 2002 were in the context of the interim order and the decision of the CRA taken in the third meeting held on 10.10.2001 to frame an “acceptable and equitable procedure for pro-rata sharing of the distress”. The copy of the minutes of the Third Meeting of CRA is herewith enclosed and marked as ANNEXURE- R-7.

23. In re para 19: The contents of this para are misleading. The CWC / CMC have not framed any distress formula as alleged.

24. In re para 20: The contents of this para are also misleading. As per the Final Order, the water during distress have to be shared on the overriding consideration of “practical difficulties” and not based on hard and fast rule or formula as wrongly suggested by Tamil Nadu. The remaining contents of the para are denied.

25. In re para 21: The contents of this para are misleading. There is no prohibition against summer irrigation as already submitted.

26. In re para 22: The Samba rice crop is essentially a rainfed crop in Tamil Nadu beginning from September to January. During distress, it can be delayed till October. Its water requirement is 1 tmc per day for a period of 155 days. During distress, the period can be cut short to 135 days by direct sowing method as was done in the year 1987 which is the subject matter of Government of Tamil Nadu pamphlet shown to and admitted by Dr. Swaminathan, witness for Tamil Nadu. In that year, the entire irrigation under Mettur was managed by release of about 90 tmc. The two third water requirement of Samba crop comes from north-east rainfall as admitted by Tamil Nadu before the Cauvery Fact Finding Committee in 1972. Seen from another angle, if the water requirement of Samba is allegedly 205 tmc, 130 tmc out of it comes from north-east rainfall. The remaining 75 tmc is to be from Mettur. These are the hard facts based on experiences from 1987-88 and admission of Tamil Nadu before the Cauvery Fact Finding Committee that –

“19. Why a ‘Samba’ crop of about 6 months duration is preferred to shorter duration varieties which will save river waters?.

Remarks

… The Samba crop utilizes nearly two thirds of the North East Monsoon rains”.

(Tamil Nadu Exh. Vol.XIV, Sl.No.834, page 186 filed before the Cauvery Water Disputes Tribunal). The same is hereto enclosed and marked as ANNEXURE-R-8.

27. In re para 23: The contents of this para are again misleading. The present stock of 36 tmc will last for 36 days at 1 tmc per day. However, north-east rainfall will begin from first week of October. Whenever there are rainy days, Mettur is not opened, otherwise water would go waste to the sea – this is the accepted practice of Tamil Nadu. The likely inflows into Mettur reservoir from 01.10.2012 to 31.01.2013 would not be less than 40 tmc even if the worst year of 2003-04 is considered. The inflows into Mettur as measured in Biligundlu, where the Central Water Commission station is located during last 10 years is as follows:

Flows measured at Biligundlu
Central Water Commission Station for the
period from October to January for the years from 2002-03 to 2011-12

(All figures in tmc)
Sl.
No. Water year Flows measured at Biligundlu CWC gauge site
1 2002-03 53.3
2 2003-04 38.3
3 2004-05 63.5
4 2005-06 175.9
5 2006-07 68.6
6 2007-08 91.1
7 2008-09 76.2
8 2009-10 66.2
9 2010-11 112.7
10 2011-12 86.0

Tamil Nadu also has the benefit of groundwater which is deliberately not presently exploited to maintain its claim against the surface water from Karnataka reservoirs. The UNDP in its report of 1972 (on record) has estimated the availability of 129 tmc of groundwater annually and Tribunal has found at least 20 tmc (equal to 30 tmc of surface water on ground) is available for extraction (Page 173, Vol.III of CWDT Report). It is denied that 50% of irrigation season is over in Karnataka. The submissions of Tamil Nadu based on gross capacity of 114 tmc are misleading. The live storage is 69 tmc which is relevant and not the gross capacity which includes the dead storage. It is also denied that agriculture is severely affected in Tamil Nadu if water is not released as prayed.

28. In re para 24: The contents of this paragraph are strongly denied. The Karnataka does not have sufficient water. The present storage is 69 tmc and the expected inflows are not more than 40 tmc when the basin is facing admittedly 48% distress. Whereas the requirement of Karnataka is 140 tmc for irrigation and drinking water requirement including requirement of Bangalore city. The suggestion that 135 tmc is available is patently wrong as it is based on gross storage which includes the dead storage. The entire argument of Tamil Nadu is based upon such baseless misleading assumptions.

29. In re para 25 & 26: For the reasons submitted above, the demand of Tamil Nadu is totally devoid of any merits. The application may kindly be dismissed.

For which act of kindness, the respondent State of Karnataka as in duty bound shall ever pray.

Drawn by:

Mohan V. Katarki, Advocate

Brijesh Kalappa, Advocate

Settled by:

F.S. Nariman,
Senior Advocate
Filed by:

(V.N.Raghupathy)
Advocate on Record
Filed on: 04.10.2012 State of Karnataka

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Karnataka’s plea in the Supreme Court

Here is the complete text of the Karnataka Government’s application for stay/modification of the Supreme Court’s September 28 order. The SC had upheld the Prime Minister headed Cauvery River Authority’s directive to release 9,000 cusecs of water to Tamil Nadu every day.

IN THE SUPREME COURT OF INDIA
(Civil Original Jurisdiction)

I.A. No. of 2012
In
O.S. No.3 of 2002

In the matter of:
State of Karnataka … Applicant
Versus
State of Tamil Nadu & Ors. … Respondents

APPLICATION ON BEHALF OF THE
STATE OF KARNATAKA FOR DIRECTIONS IN
I.A. 5 IN O.S. 3 OF 2002.

To:

The Hon’ble Chief Justice of India
and His Companion Judges of the
Supreme Court of India.

MOST RESPECTFULLY SHOWETH:

1. This is an application on behalf of the State of Karnataka seeking directions in the form of stay / modification of the order passed by this Hon’ble Court at the mentioning stage on 28.09.2012 in I.A. No.5 in O.S. 3 of 2002 directing State of Karnataka “to release 9,000 cusecs of water daily from today upto 15th October 2012 in terms of the decision taken by the Chairperson of Cauvery River Authority in the 7th meeting of the said Authority held on 19.09.2012”. Copy of the Order dated 28.09.2012 is hereto annexed as ANNEXURE–A and copy of the decision of the Chairperson of Cauvery River Authority in the 7th meeting is hereto annexed as ANNEXURE–B.
2. Tribunal’s Final Order: The Cauvery Water Disputes Tribunal on 05.02.2007 has passed its purported Final Order directing Karnataka to ensure 192 tmc annually at the interstate border Biligundlu – in a normal year. However, during the situation of distress caused by shortfall in the inflows, the Tribunal has observed as below:

“….However, if there are two consecutive bad years, it would cause distress which shall have to be appropriately tackled by the Cauvery Management Board/Regulatory Authority by relaxing the schedule of deliveries and getting the reservoirs operated in an integrated manner through the States concerned to minimize any harsh affect of a bad monsoon year. In view of such practical difficulties, the Cauvery Management Board/Regulatory Authority shall have the liberty to alter monthly and/or ten-daily schedule of releases while making effort to meet the seasonal allocations for the crop as far as possible, in consultation with the party States”.

The Civil Appeal filed by the Applicant State of Karnataka is pending before this Hon’ble Court. Submissions made hereinafter are without prejudice to the contentions raised in the pending Civil Appeal No.2453 of 2007.

3. I.A. 4: The respondent State of Tamil Nadu had moved I.A. 4 on 20.07.2012 in O.S. 3 of 2002 inter alia seeking directions from this Hon’ble Court for release of water. In the reply filed on 24.08.2012, the respondent State of Karnataka submitted inter alia that the current year being the distress year admittedly the water has to be shared on practical difficulties. The State of Karnataka further submitted that the accounting of the flows should take place at the end of December after an interim assessment at the end of September when the south-west monsoon is fairly known. In the Sur Rejoinder dated 05.09.2012, Karnataka submitted that the shortfall in the Cauvery basin above the interstate border Biligundlu is 48.3% as compared to the normal flows (average of 38 years from 1974-75 to 2011-12). The extent of shortage was neither denied nor questioned by Tamil Nadu in its response dated 06.09.2012 to the Sur Rejoinder. On 10.09.2012, the I.A. No.4 was heard by this Hon’ble Court. Counsel for the State of Karnataka submitted the following statement for consideration of this Hon’ble Court as a matter of goodwill gesture:

“From the 4th September 2012 onwards 7,000 plus cusecs is the daily flow measured at Biligundlu. The State of Karnataka states that on and from 12.09.2012, 10,000 cusecs will be ensured at Biligundlu till and only until 20th September 2012, when the CRA meets on 19th September 2012 and takes a decision after considering the case of both parties.”

Copy of statement of Counsel for the state of Karnataka submitted to the Hon’ble Court on 10.09.2012 is hereto annexed as ANNEXURE–C.

After taking the above statement on record, this Hon’ble Court disposed of I.A. 4 by its order. The relevant part of the said order is extracted below:

“Insofar as a direction with regard to the release of water by the State of Karnataka from its reservoirs, during the current year is concerned, we have heard learned senior Counsel for both the States at some length. During the course of hearing learned senior counsel appearing for the State of Karnataka very fairly states that since a meeting of the CRA is already fixed, as a goodwill gesture and by way of purely an ad hoc arrangement, the State of Karnataka is willing to release 10,000 cusecs flow of water at Biligundlu from 12th September 2012, only till 20th September, 2012. We order accordingly.”

Copy of the Order dated 10.09.2012 is hereto annexed as ANNEXURE–D

4. CRA’s Decision: The Cauvery River Authority (CRA) meeting was held on 19.09.2012 (ANNEXURE-B). However, ignoring the submissions made by the Chief Minister on the precarious condition in which Karnataka is placed, the Chairman of the CRA in exercise of his powers under Clause-IX of the Cauvery River Authority (Conduct of Business) Rules 1998, passed his decision directing Karnataka to release 9,000 cusecs of water daily from 20th September to 15th October 2012 by relying on the rainfall data and sown area data which are neither relevant nor correct. No expert team was sent to check the ground realities as was done in the similar situation in 1996 and 2002-03. The decision is extracted below:

“I have carefully listened to the points made by the Chief Ministers of Tamil Nadu, Karnataka and Pondicherry.

We are all aware that the arrival of monsoon was late in the country and many States have received less than expected rainfall.

As on 10th September 2012, I am informed that the deficit rainfall in Tamil Nadu is 21% while Karnataka has received 18% less rainfall.

I am also informed that the Karnataka was in a position to sow only 74.7% of its normal agriculture area, while Tamil Nadu could sow only 33.3% of its normal agricultural area.

In this situation, when both the States are in distress, it is natural to expect that this distress would be shared among the basin States. The existing reservoirs have to be so regulated that the requirements are optimally met in both the upper and lower riparian States.

Karnataka has stressed that the State is facing severe drought. Once the south west monsoon ends no significant inflows of water are expected till south west monsoon next year. A minimum storage of water is essential to provide drinking water to its cities, and for minimum irrigation needs. Tamil Nadu too, has emphasized the grave water situation faced by it. It seeks immediate release of water as per the terms of the Award, and states that the water is essential if the samba crop in the State is to be saved. It wants CRA to ensure that the water is released by Karnataka. Pondicherry has also spoken on similar lines.

After careful consideration of all the points and the requirement of the States and since consensus has eluded the parties, I find it appropriate that Karnataka releases 9000 cusecs of water daily from 20th September to 15th October 2012. It has been releasing 10,000 cusecs daily from 12th September 2012 on the directions of the Supreme Court.

The Cauvery Monitoring Committee shall review the position by 15th October 2012 so that appropriate releases beyond 15th October 2012 may be decided in consultation with the State Governments.

The matter may be brought before the CRA, if required”.

5. Review Petition to CRA: Being aggrieved, a Review Petition (RP) was immediately submitted on 20.09.2012 to the Chairman of the CRA. A prayer for keeping his decision in abeyance until the RP is considered and decided was also made. Entertaining the RP, the Secretary of CRA by letter dated 21.09.2012 invited comments from the opposite States before 28.09.2012. The Secretary of the CRA has proposed his visit to Karnataka on 05.10.2012 and meeting of the Cauvery Monitoring Committee (CMC) is scheduled on 08.10.2012. However, the order is not placed in abeyance as prayed by the State of Karnataka. Copy of the letters dated 20.09.2012, 21.09.2012 and 27.09.2012 (28th meeting of CMC to be held on 08.10.2012) is annexed hereto as ANNEXURE–E (colly)

6. I.A.5: The State of Tamil Nadu filed an another I.A. No.5 inter alia seeking direction for higher flows than ordered by Chairman of CRA by the decision dated 19.09.2012 (ANNEXURE-B). The said I.A. was listed for mentioning on 28.09.2012. This Hon’ble Court passed the following order (ANNEXURE-A), the relevant part of which, is extracted below:

“….the State of Karnataka is directed to release 9,000 cusecs of water daily from today upto 15th October, 2012, in terms of the decision taken by the Chairperson, Cauvery River Authority in the 7th meeting of the said Authority held on 19.09.2012.”

7. Implementation of the Order of this Hon’ble Court’s dated 28.09.2012 (ANNEXURE-A): Pursuant to the above directions passed on 28.09.2012 and with a view to secure its peaceful implementation, the Government of Karnataka took steps immediately calling a meeting of the floor leaders in the State Assembly and Council (of all political parties) on 29.09.2012. The State Government also met various organisations of farmers etc., and sought their cooperation so as to obviate any physical resistance by groups. The security forces were ordered to be deployed in the Cauvery Basin area, particularly the busiest highway in the State between Bangalore and Mysore, which is the heart of Cauvery basin. A flow warning to the downstream area was also issued by the local administration to alert the people of the influx of flows into the river. The Government also petitioned the Chairman of the CRA seeking urgent action on its prayer for keeping his order dated 19.09.2012 in abeyance as made in the RP filed on 20.09.2012 [ANNEXURE- E (colly)]. In these circumstances, the water was released from the evening of 29.09.2012. The outflows from the reservoirs in the State of Karnataka are as follows to ensure 9000 cusecs :

(flows in cusecs)

Date Kabini KRS Total
29.09.2012 600 1544 2,144
30.09.2012 1975 2152 4,127
01.10.2012 5000 4916 9,916
02.10.2012 5000 5828 10,828
03.10.2012 5000 5801 10,801

8. Releases at Biligundlu Between 10.09.2012 to 03.10.2012: Between 10.09.2012 to 20.09.2012, the order of this Hon’ble Court dated 10.09.2012 (ANNEXURE-D) recording the statement of Counsel for Karnataka to make available 10,000 cusecs as a goodwill gesture holds good. Between 21.09.2012 to 03.10.2012, if the decision of the CRA directing release of 9,000 cusecs at Biligundlu is considered, the average flow made available works out as below:

STATEMENT SHOWING THE FLOWS ORDERED BY HON’BLE SUPREME COURT ON 10.09.2012 AND CRA ON 19.09.2012 AND OBSERVED FLOWS AT CWC GAUGE SITE BILIGUNDLU ON INTER STATE BORDER
(In cusecs)
Sl.
No Date Flows ordered Flows at Biligundlu Remarks

1 12.09.2012 10000 8871 As per Hon’ble Supreme Court order of 10th Sept. 2012 after considering Karnataka’s written statement of 10.09.2012 in response to Court’s request to suggest something as a goodwill gesture
2 13.09.2012 10000 8370
3 14.09.2012 10000 9825
4 15.09.2012 10000 10489
5 16.09.2012 10000 13183
6 17.09.2012 10000 14370
7 18.09.2012 10000 14437
8 19.09.2012 10000 14454
Total (from 12th to 19th Sept.) 80000 93999
9 20.09.2012 9000 13211 As per directions of CRA on 19.09.2012 based on the communication in Secretary’s letter dated 20.09.2012
10 21.09.2012 9000 11064
11 22.09.2012 9000 6720
12 23.09.2012 9000 4912
13 24.09.2012 9000 4238
14 25.09.2012 9000 4443
15 26.09.2012 9000 3687
16 27.09.2012 9000 3920
17 28.09.2012 9000 4124
18 29.09.2012 9000 6544
19 30.09.2012 9000 7084
20 01.10.2012 9000 6339
21 02.10.2012 9000 11294
22 03.10.2012 9000 12021
Sub Total 20.09.2012 to 03.10.2012 126000 99601
Grand Total 12th Sept. to 3rd Oct. 2012 206000 193600
Average 8114

9. Widespread Agitation is Contained: Consequent to the release of water from the reservoirs in Karnataka, the farmers in the districts of Mysore, Mandya, Hassan have taken to gherao and even threatened to seize the dam. Strong perceptions of the farmers are that any releases from the reservoir would affect their standing crops which are their only livelihood. The widespread agitation protesting against the releases has badly affected the normal civic life in the cities and towns viz., Mysore, Mandya etc., but all possible steps to ensure law and order (so far not unsuccessful) have been and are being taken. The busiest highway between Bangalore-Mysore has been physically blocked by the agitators. The schools and Colleges have closed. The peace committees have been formed in towns and cities. But, the agitation is being kept under control by the Government by deploying adequate security forces. However, the reaction of the people cannot be ignored as it has all the potential to go out of hands, despite best efforts to keep it under control.

10. Karnataka’s Needs are Prejudicially Affected: Karnataka’s water requirements are about 140 tmc for irrigation to standing kharif and perennial crops under the systems dependent on four reservoirs and drinking water supplies in this water year from October onwards. But, the present storage as on 02.10.2012 is 67 tmc and the expected inflow should be 40 tmc (if the average of 38 years (1974-75 to 2011-12) is considered with 40% reduction due to distress) taking the total available water in Karnataka to 107 tmc. Thus, the available total water of 107 tmc is far below the future requirement of 140 tmc in Karnataka for irrigation and drinking water supplies including supplies to Bangalore city with a population of
8.4 million. It is further submitted that the Kabini reservoir which contributes significantly to the releases at Biligundlu has suffered the most this water year as the shortfall is 55% since only 43 tmc is the inflow as against an average inflow of the past 38 years (1974-75 to 2011-12) of 98 tmc. Hereto marked a Note on the Drought in Karnataka as ANNEXURE-F.

11. Dwindling inflows: In response to the letter from the Secretary, CRA, the Chief Secretary to the Government of Karnataka inter alia pointed out that the flows into Karnataka reservoir have dwindled. The relevant part of the letter dated 25.09.2012 reads as follows:

“When the State of Karnataka agreed on 10.09.2012 to ensure 10,000 cusecs till 20.09.2012, the inflows into Karnataka reservoirs had improved considerably being 32,225 cusecs (average of 01.09.2012 to 10.09.2012). However, the inflows dwindled subsequently, the average being 17768 cusecs (average of 11.09.2012 to 20.09.2012). In the last five days between 21.09.2012 to 25.09.2012, the inflows have further dwindled to 8761 cusecs, 6921 cusecs, 7646 cusecs, 6436 cusecs and 5157 cusecs, respectively”

Hereto marked the copy of the letter dated 25.09.2012 as ANNEXURE-G

The inflows into all four reservoirs (viz., Krishnarajasagara, Kabini, Hemavathy and Harangi) from 25.09.2012 to 28.09.2012 (the date this Hon’ble Court passed its order), are as follows:

(in cusecs)
Sl. No. Date Inflows
1 25.09.2012 5157
2 26.09.2012 4852
3 27.09.2012 5410
4 28.09.2012 7104

12. Submissions on Amicable Solution: After the end of September, the assessment of the available flows and requirement is now fairly available. The CRA which met on 19.09.2012 (ANNEXURE-B), had a truncated picture before it. The present available data till the end of September show that the requirements of Tamil Nadu can be fairly met without continuing the releases of 9,000 cusecs at the interstate border Biligundlu as ordered by the CRA. The State of Karnataka submits as follows in this regard:

a) In 123 days between 01.10.2012 to 31.01.2013, which is the cropping period for Samba rice crop in Tamil Nadu undisputedly, the requirement of water is 123 tmc, being 1 tmc per day on average. Copy of letter dated 17.09.2001 of Chief Secretary of Tamil Nadu to Chief Secretary of Karnataka indicating requirement of 1 tmc) is hereto annexed as ANNEXURE–H.

b) The water that should be available in Tamil Nadu during 01.10.2012 to 31.01.2013 is as follows:

i) Present stock of water at Mettur – 37 tmc
ii) Expected releases at Biligundlu – 38 tmc
iii) Biligundlu – Mettur contribution – 05 tmc
iv) Contribution from North-East – 40 tmc
rainfall
———–
Total – 120 tmc
======

c) Among the above four sources of water, the source (ii) is the issue to be considered. The expected release of 38 tmc at Biligundlu suggested by applicant Karnataka is based on the data of 2003-04 which was the worst year in the last four decades which is comparable to this year. The daily flow at Biligundlu works out to 3575 cusecs per day (38 x 1000 / 123 x 0.0864) – accounted at the end of the season as per the order dated 19.12.1995 of the Tribunal. Further, during the water year 2003-04, Tamil Nadu did not complain by filing any I.A. before this Hon’ble Court.

For the reasons submitted above, the order
of this Hon’ble Court dated 28.09.2012 (ANNEXURE-A) passed at the time of mentioning as well as the decision of the CRA made on 19.09.2012 (ANNEXURE-B) requires to be modified. The State of Karnataka places this suggestion that about 38 tmc is likely to be the releases available between 01.10.2012 to 31.01.2013 as an amicable solution to the complex issue of sharing the water in this extreme distress year of 2012-13.

PRAYER

Under these circumstances, this Hon’ble Court may be pleased to:

a) Pass directions staying or modifying the order passed on 28.09.2012 (ANNEXURE-A) by this Hon’ble Court in the interest of justice and equity and/or modify the same as per the suggestion in para 12(c) above.

b) Pass such further order or orders as this Hon’ble Court may deem fit in the interest of justice and equity.

FOR THIS ACT OF KINDNESS THE DEFENDANT STATE OF KARNATAKA AS DUTY BOUND SHALL EVER PRAY.

Drawn by:

Mohan V. Katarki, Advocate

Brijesh Kalappa, Advocate

Settled by:

F.S. Nariman,
Senior Advocate

S. Vijayashankar,
Advocate General
Filed by:

(V.N. Raghupathy),
Advocate on Record,
Filed on: 04.10.2012 State of Karnataka.

IN THE SUPREME COURT OF INDIA
(Civil Original Jurisdiction)
I.A. No. of 2012
IN

O.S. No.3 of 2002

In the matter of:

State of Karnataka. … Applicant

Versus

State of Tamil Nadu & Ors … Respondents

AFFIDAVIT

I, M. Bangara Swamy, S/o Late M.Mahadevanaika, aged about 52 years, resident at No.12-C, 8th Cross, Jayamahal Extension, Bangalore-560046 presently at New Delhi do hereby solemnly affirm and state on oath as under:-

1. That I am working as Chief Engineer (Inter State Waters), Water Resources Development Organisation, Ananda Rao Circle, Bangalore-560009 and as such I am well conversant with the facts and record of this case.

2. I say that the averments made in the accompanying Application in paragraphs 1 to 12 are true and correct to the best of my knowledge and belief and are as derived from the records of this case.

3. That the Annexures accompanying the Application
are true copies of their respective originals, except Annexure-F which is prepared by Technical Advisors to the Government of Karnataka, which are believed to be true and correct.

DEPONENT

VERIFICATION

I, M. Bangara Swamy, Deponent above named do hereby verify and declare that the contents of this Affidavit in paragraphs (1) to (3) above are true and correct to the best of my knowledge and belief.

Verified at New Delhi on the 4th day of October 2012.

DEPONENT

ANNEXURE – F

NOTE ON DROUGHT

1. The State of Karnataka and specially the Cauvery basin faced an unprecedented drought this year by practically a total failure of South west monsoon up to the end of August. The deficiency in the rainfall was as much as 46 to 76% in the heavy rainfall areas by the end of July. The State government had to declare all the 49 taluks in the Cauvery basin as drought affected by third week of August. Consequentially, the huge deficiency in rainfall, resulted in larger deficiency in flows to reservoirs. The inflows to reservoirs at the end of August were only 102 tmc as against long term average of 216 tmc resulting in a deficiency of as much as 47%. Though the performance was relatively better in September, the rainfall deficiency in the Cauvery basin in Karnataka is still 37% to the end of September. The inflows to reservoirs at the end of September were only 151 tmc as against long term average of 257 tmc resulting in a deficiency of as much as 59%.

2. Due to poor monsoon rainfall, the demand for drinking water from surface water sources has increased. The requirement of drinking water for the remaining period from October to June 2013 is estimated to be 23.3 tmc. This includes Bangalore City with a population of 8.4 million (15 tmc), Urban Water Supply (7.2 tmc) and Rural Water Supply (1.1 tmc). The main source of Bangalore Water Supply is Kabini reservoir. With the storage in Kabini reservoir fast depleting because of the ordered releases, the water supply to Bangalore City has become precarious and may lead to severe water scarcity. The position is likely to be critical after January if the present rate of storage is continued.
=

3. Injury due to releases – in Hemavathy & Kabini Projects:

Hemavathy Right Bank High Level Canal is off taking off at – 2880.00 Ft.
The Cill level of other canal – 2845.00 Ft.
MDDL of HRBHLC is – 2890.00 Ft.
The present level – 2911.79 Ft.
Gross capacity – 28.04 TMC.
Storage at 2890 Ft. is – 14.163 TMC.
Storage above MDDL of this Channel – 13.877 TMC

Out flow from reservoir as on this date – 5,300 Cusecs
(River – 1500 Cusecs)
(Canal – 3800 Cusecs)

Per day outflow – 0.456 TMC
The area sown during Khariff in these channel is – 33,597 Acres
(Paddy – 28,000 Acres)
(Semidry – 5,597 Acres)

Total water requirement – 7.00 TMC.
So far utilized is – 2.50 TMC
Balance required – 4.50 TMC.

…..2

-2-

Crop sown in 2nd fortnight of August
Balance Crop period – 95 Days
Average estimated inflow from October to December is 9.00 TMC
Total available water above the MDDL of this canal – 23.00 TMC (14+9 TMC)

At the rate of present withdrawal if will cost for 50 days and there will be shortage of 45 days.
Released to the river from this reservoir will further affected crop under this canal.

CAUVERY NEERAVARI NIGAMA LIMITED

Analysis of available water in Kabini Reservoir as on 01.10.2012

 Full Reservoir level – 2284.00 Ft.
 Level as on 1st October – 2272.26 Ft.
 Gross storage – 12.816 TMC
 MDDL level – 2266 Ft.
 Storage above MDDL – 3.044 TMC
 Cill level – 2249 Ft.
 Total area sown – 96,000 Acres
Paddy – 70,000 Acres
Semidray- 24,900 Acres
Sugar Cane- 1,100 Acres

 Total requirement of water – 19.00 TMC
Water Utilized – 10.37 TMC
Balance – 8.63 TMC (8.60 TMC)

 The total outflow of Reservoir on 30th September – 4165 Cusecs
(Canal – 2190 Cusecs)
(River – 1975 Cusecs)

 Out flow to river from 1st October to 15th October 2012
River – 5,000 Cusecs
Canal – 2190 Cusecs
Total – 7,190 Cusecs
Average inflow – 1,500 Cusecs
– 5,690 Cusecs
….2

-2-

For 15 Days 5,690 x 15 = 85,350 Cusecs
Total – 89,515 Cusecs
Which is 7.73 TMC

But, the available MDDL is 3.00 TMC. Therefore at this rate the level will come down to MDDL in 6 days.

The Capacity above mid of MDDL is 3.212TMC (9.812 – 6.6 TMC)
At the rate of – 2890 Cusecs
Canal – 2190 Cusecs
Anecut Canals – 700 Cusecs
Expected inflow – 1500 Cusecs
Net release – 1390 Cusecs

It will come down to mid MDDL by 26 days.

Water allowed in 1st September 2012.
There will be shortage of water for 2 ½ months.
Resulting in stressed irrigation in 50% of area.

FSN/02.10.2012
The following quantities of water have been so far released as per order on the evening of 29th September 2012 as follows:

From the evening of 29th September 2012, 9,000 cusecs of water were released from the Krishnarajasagara and Kabini reservoirs from 9.30 p.m.

This release from two dams combined with intermediate catchment resulted in ensuring of …….

They had come asking for CRA to decide I.A.4.
Therefore, having regard to that application itself, they have to abide to the decision of CRA which they are not doing. This affidavit is filed protem only.
Deny all rest of the allegations
Give the Chart on average theory
Put it as a note amicable solution, then we can use in Supreme Court also.
=

INDEX

Sl.
No. Description Page Nos.
1 Application on behalf of the state of Karnataka for directions with affidavit
1-16
2. ANNEXURE A
Copy of the order dt. 28.9 .2012 passed by this Hon’ble Court I.A. No. 5/2012 in Original Suit No. 3/2002
17-18
3. ANNEXURE B
copy of the decision of the Chairperson of Cauvery River Authority in the 7th meeting
19-20
4. ANNEXURE C
Copy of statement of Counsel for the state of Karnataka submitted to the Hon’ble Court on 10.09.2012
21
5. ANNEXURE D
Copy of the Order dated 10.09.2012 passed by this Hon’ble Court I.A. No. 4/2012 in Original Suit No. 3/2002
22-23
6. ANNEXURE E(COLLY)
Copy of the letters dated 20.09.2012, 21.09.2012 and 27.09.2012 (28th meeting of CMC to be held on 08.10.2012)
24-33
7. ANNEXURE F
Copy of the Note on the Drought in Karnataka prepared by Technical Advisors
34
8. ANNEXURE G
Copy of the letter dated 25.09.2012
35-37
9. ANNEXURE H
Copy of letter dated 17.09.2001 of Chief Secretary of Tamil Nadu to Chief Secretary of Karnataka indicating requirement of 1 tmc) 38

IN THE SUPREME COURT OF INDIA
(Civil Original Jurisdiction)

I.A. No. of 2012
In
O.S. No.3 of 2002
In the matter of:

State of Karnataka … Applicant
Versus
State of Tamil Nadu & Ors. … Respondents

APPLICATION ON BEHALF OF THE STATE OF KARNATAKA FOR DIRECTIONS

(FOR INDEX KINDLY SEE INSIDE)

________________________________________
ADVOCATE FOR THE APPLICANT V.N. RAGHUPATHY

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Answer the notice Manjunatha!

The headline is misleading. Neither Manjunatha or his  director have been issued notices by the High Court. Justice Anand Byra Reddy issued emergent notices to the Asst.Solicitor General for Central Govt, Central Board of Film Certification the BBMP and the film’s producer A Suresh, on Friday, the same day the film started its run in theatres across vishala Karnataka. Here is the complete text of the petition filed against the Jaggesh-starrer Manjunatha BA, LLb… (The judge’s comments about the film is in the review on Bangalore Mirror).

Image

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
(Original Jurisdiction)

W.P. No. 37918 of 2012 (Cinema)

Sri M.K.Vijaya Kumar, aged 37 years,
Advocate by Profession, Also President
Of Kannada Rakahana Vakeelara Vedike(Regd)
S/o Sri Keshavappa
No.435, 9thBlock,Sir M.V.Layout
Near NGEF Layout,
Mallathalli
BANGALORE-560 010

..

Petitioner

1.Union of India
Ministry of Information And Broadcasting
North Block
New Delhi-110001
Rep.by its Secretary

2. The Regional Officer,
Central Board of Film Certification,
4th Floor,’D’Wing, Kendriya Sadana,
Koramangala,
BANGALORE-560 034

3.The Commissioner
Bruhath Bangalore Mahanagara Palike
BANGALORE-560 002

4.Sri A.Suresh,
Partner/Producer,
Sri Gowramma Productions,
Next to Nanda Hotel-Opp.Santosh Lodge,
Gandhinagar,
BANGALORE-560 009

… Respondents

MEMORANDUM OF WRIT PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA.

The petitioner above named begs to submit as follows:
The Petitioner is a practicing Advocate in both Civil and Criminal matter in various
Courts and that he is also the President of the Kannada Rakshana Vakeelara Vedike.

1.The Petitioner saw the Wall Posters being put on the Walls of Bangalore City inrelation to a Kannada Feature Film by Title –Manjunatha-BA LLB-(Banni NimaguHakistheni) being released in all the theatres in Karnataka on 14-09-2012. The abovesaid Film is being produced by the 4th Respondent in which the Actor Sri Jaggesh who has played the role of an Advocate. The Film is Scripted and Directed by Sri S.Mohan.

The Copy of the Paper Add given in Kannada News paper Daily Udyavani dated 13-09-2012 is produced as Annexure ‘A’. The relevant photographs are produced as Annexure ‘B’, ‘C’ and ‘D’ depicting the holding of the Liquor Bottle by the Hero of the above said Film.

2.The Petitioner submits that the 2nd Respondent has granted –UA-Certificate as per Section 5A (1)(a) of the Cinematograph Act, 1952.

3.The Petitioner further submits that in spite of the Law on Disfigurement of Walls Act the 3rd Respondent has permitted the Wall Posters being put up on all over Bangalore City in respect of the above Kannada Film.

4.The Petitioner submits he had also watched the Promo of the above said Kannada Film on 12-09-2012 in the Kannada TV Channel which shows that the Hero of the Film is in the habit of Drinking Liquor and tells that he will give the same to others also and comes to the Court as his character is that of an Advocate in an inebriated condition.

5.The Petitioner submits that since 2nd Respondent without following the guidelines contemplated under the Cinematograph Act,1952 has granted the Censor Certificate to the above said Feature Film being released in theatres all over Karnataka on 14-09-2012. The Petitioner further submits that as some of the scenes in the Film and the Title is affecting the very Advocate Community and that of the Petitioner , he having no other efficacious remedy is filing the Writ Petition under Articles 226 and 227 of the Constitution of India.

6.The Petitioner has not filed any other Petition or petitions on the same cause of action and no other Petition/Suits are pending against the same cause of action at the instance of the Petitioner in any other court.

7.The Petitioner produces herewith Court Fee of Rs.100/- as per the provisions of the Karnataka Court Fees and Suits Valuation Act. .

GROUNDS

8.It is respectfully submitted that it is the duty of the 2nd Respondent while granting Certification of Feature Film to follow the Principles of Guidelines which issued by the 1st Respondent as per Sub-Section (2) of Section 5 B of the Cinematograph Act, 1952 w.e.f 15-09-1997. It stipulates that scenes which have the effect of justifying or glorifying drinking are not shown as the objectives of the film certification to ensure that the medium of film remains responsible and sensitive to the values and standards of society, it also stipulates that visuals or words involving defamation of an individual or body of individuals, or contempt of court are not presented- Explanation- Scenes that tend to create scorn, disgrace or disregard of rule or undermine the dignity of court will come under “Contempt of Court”-

9.It is respectfully submitted that 2nd Respondent had also not followed guidelines properly which stipulates-The Board shall scrutinize the titles of the film carefully and ensure that they are not provocative, vulgar, offensive or violative of any of the guidelines furnished by the 1st Respondent.

10.It is respectfully submitted that it will not curb the Fundamental Right of the 4th respondent if the 2nd Respondent had refused Film Certification as enumerated Under Article 19(2) of the Constitution of India where reasonable restriction can be imposed.

11.It is respectfully submitted that 1st Respondent has power as per Rule 31 of the Cinematograph (Certification) Rules1983 uncertify the Feature Film in terms of the power Under Sec.5E and 6 of the Cinematograph Act ,1952.

12.It is respectfully submitted that the 4th Respondent had exceeded all the decency and other limits and that the 2nd Respondent had also failed to look into the Title of the Feature Film and relevant scenes which affect the Advocate Fraternity as a whole and also the Judiciary and as such it is necessary for this Hon’ble Court to direct the 1st Respondent after examining the above said Feature Film to Uncertify the said Film.

13.It is also respectfully submitted that the 3rd Respondent has allowed the posters of the above said Feature Film being pasted on the walls of Bangalore City with the Above Title without looking into the effect it would make in the eye of the public and the image of the Advocates.

GROUNDS FOR INTERIM RELIEF

14.It is respectfully submitted that the 3rd Respondent has permitted the 4th Respondent to put up posters of the above said film in the entire Bangalore City and if the same is not removed forthwith by way of an interim order of this Hon’ble Court by giving direction to the 3rd Respondent and also it is against the Disfigurement of Walls Act, it is prayed that this Hon’ble Court may be pleased to direct 3rd Respondent Remove Forthwith all the Posters of the Kannada Feature Film –Manjunatha BA LLB-Banni
Nimagu Hakistheni- in the interest of justice and equity.

PRAYER

15.The Petitioner therefore prays that this Hon’ble Court be pleased to:

(a)Issue a Writ of Mandamus or Direction to the 1st Respondent U/s5E to Uncertify
the Kannada Feature Film titled- Manjunatha BA LLB-Banni Nimagu Hakishteni- as
the same is Contrrary to the provisions of Section 5B,6 of the Cinematograph Act, and
Guidelines issued by the 1st Respondent dated 15-09-1997;

(b)Pass such other order or orders as this Hon’ble Court may deem fit in the facts and
circumstances of the case in the interest of justice and equity.

INTERIM PRAYER

16.The Petitioner prays that this Hon’ble Court may be pleased to direct 3rd Respondent Remove Forthwith all the Posters of the Kannada Feature Film –Manjunatha BA LLB- Banni Nimagu Hakistheni- in the interest of justice and equity.

Bangalore
Date:14-09-2012

ADDRESS FOR SERVICE

Advocate for Petitioner

SYNOPSIS
LIST OF DATES AND BRIEF FACTS OF THE CASE

2006 The Petitioner is a practicing Advocate in both Civil and Criminal Courts in various
courts and also the President of the Kannada Rakshana Vakeelara vedike which is a
Registered Body.

12-09-2012 The Petitioner saw the Promo of the Kannada Feature Film and also Wall
posters in relation to title of the film-Manjunatha BA LLB-Banni Nimagu Hakistheni-

13-09-2012 The Petitioner saw the paper public in Kannada daily Udyavani about the
release of the above said Film in Karnataka in various theatres.

14-09-2012 The above said Feature Film depicting the Advocate in bad way and that
the 2nd Respondent in spite of the powers/guidelines for film certification granted the
Censor Certificate to the above said Film and the 4th Respondent is releasing the said
film in theatres all over Karnataka State and will affect the image of the Advocate if the
public watch the same.

14-09-2012 The Petitioner submits that as the above said film is against the provisions
of Cinematograph Act and Rules as well as Guidelines issued by the 1st Respondent
the present Writ Petition is filed under Articles 226 and 227 of the Constitution of
India seeking a direction to the 1st Respondent to Uncertify the Film in the interest of
Advocates Community and public at large,in the light of Sec5E and 6 r/w Rule 31 of the
Cinematograph Act 1952 and Rules 1983.

Bangalore
Date:14-09-2012

Advocate for Petitioner

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Former friends continue fight

Producer BK Srinivas warns film chamber not to talk about Adda as it is sub-judice. He is waging a legal battle with director Prem over the film title. His latest salvo today is a letter to KFCC

image

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Swamiji teaches Bharatanatya to ‘item dancer’

Rishikumara Swamiji, who has become the standard-bearer of commentary in all things that news channels find controversial in the last few months has finally acted in a movie. He played himself with makeup for a few scenes in the film Devaraane last weekend. While he was on the sets, an item song for the film featuring Mumbai import Preeti Sood was also being shot. The swamiji had tea along with her and claimed that he gave her tips on Bharatanatya, no less.

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Godfather sends SOS to Film Chamber

‘God is supreme, but Godfather is extreme,’ screamed the posters of Upendra’s new film. But despite the might of one K Manju and three Upendras, the film is having a tough time retaining cinema halls as this letter by the distributor of the film to the Karnataka Film Chamber of Commerce earlier today explains…

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