Language Sciences, Vol. 20, No. 1, pp.

29---43, 1999
© 1998 Elsevier Science Ltd. All rights reserved
Pergamon Printed in Great Britain
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L A N G U A G E C H O I C E IN E D U C A T I O N :
C O N F L I C T R E S O L U T I O N IN I N D I A N C O U R T S

E. A N N A M A L A I

1. The nature of language rights

1.1. Universality of language rights

The most fundamental aspect of language rights is the freedom of choice to use a language for a
given purpose to realize one's interests. The use may be in a private domain such as the home
or the community for the purpose of interpersonal communication, socialization, cultural
practice and transmission, religious observance, pleasure activities, etc., or in a public domain
such as school, government, the law courts, the market, etc., for the purpose of education,
obtaining public services and goods, grievance redress, legal protection, providing or receiving
commercial services and goods, etc. Private domains are generally the sphere of personal action
and public domains are invariably the sphere of political and economic action with regard to
determination of people's behavioural norms. Making language choices is an inherent
behaviour in countries with many languages and, as all countries are at least demographically
multilingual, language choice is present everywhere. Hence the exercise of language rights is
(notionally) a universal phenomenon. Recognition of this should be an inherent part of
language planning. Planning is not just selection of a language and its codification, elaboration,
and implementation for the formation of a nation and its subsequent functioning: planning also
involves ensuring freedom of language choice for the individual so that resolution of the
tension between these two goals is at the core of Language Planning (Annamalai, 1987).
Individuals in functionally multilingual communities grow up with more than one language
and acquire different competencies in each as demanded by the functional roles of the
languages in the community. They thus have a repertoire of languages rather than a mother
tongue. It is therefore appropriate to talk about the freedom of choice of a language from this
repertoire. It is also true that a language repertoire is normally a property of linguistic
minorities or dominated groups rather than of majority or dominant language speakers. This is
why language rights are normally associated with linguistic minorities and dominated groups
and their mother tongues. This does not, however, necessarily mean that the need to exercise
choice is only a right for them. In principle, the right rests with everyone in a multilingual
country. A majority-language speaker may have a need to make a choice for interlingual
communication with a person of another state, as in India, or a person of another country, or for
interaction such as doing business with linguistic minorities.

Correspondence related to this paper should be addressed to: E. Annamalai, 1047, Panchamantra Road,
Kuvempunagar,Mysore5700023, India.
L$C 20: I-B
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30 E. ANNAMALAI

The crucial difference between a minority and a majority is seen when each group is
monolingual. For the monolingual majority-language speaker, language rights are irrelevant,
while for the monolingual minority-language speaker, the right to use the mother tongue, the
only tongue he or she has, is fundamental and typically political since this right is likely to be
denied or ignored by law or social practice or both.

1.2. Contingent factors

Language rights are contingent upon the legal sanction a person enjoys as a citizen or
migrant worker under the laws of the country of residence or under international law. If any law
is violative of human rights, it is necessary to change this law first before dealing with language
rights. Language rights are contingent on human rights, but are not same as human rights like
the fight to life and the right to due process under the law. Tourists, for example, with no legal
sanction as citizens or residents in a country of a different language which they are visiting,
cannot exercise a fight to get and give information in their mother tongue. It is within the rights
of countries to determine the language for giving information to and getting information from
tourists with regard to their pursuit of tourist interests. Such decisions may be motivated by the
commercial interests of the decision-maker. The tourists, however, can exercise their language
rights with regard to protecting their life and due process of law when, for example, they are
faced with a criminal charge in the country they are visiting. Their language rights in this case
enable them to exercise their human rights.
Language rights are also contingent upon the mutual consent of the persons in com-
munication. A conference participant cannot exercise their language rights to give and get
information in the proceedings of the conference which they choose to attend when the
language of their choice is not one of the languages of deliberation of the conference. Their
decision to participate in the conference constitutes mutual consent to this situation.
This is so because the public use of language is not an act in isolation (like using a language
for writing one's private diary), but is an act performed in co-operation with others. Such
considerations do not apply only in the public domain. Even in the private domain of the home,
the consent of other family members is taken to exist for a person's use of a language of their
choice. The issue of consent will be especially pronounced in families of interlingual marriage.
The language of the husband is not necessarily the language of the home nor the language
transmitted to the children. There may be more than one language mutually consented to for
these purposes.
However, it is not a matter for consent by the citizen even in the case of the private domain
of entertainment, when media such as radio and television are publicly provided, supported or
controlled, in part or full, by the State with public funds. It is a matter of rights because the
media use public funds. It will be a matter for mutual consent when the entertainment is
provided purely as a service for a financial consideration by a commercial company.

1.3. The extent of freedom of language choice

The major question with regard to language choice for an individual with a multilingual
repertoire is whether the choice is free and dependent only on the user's will or whether the
dominant language in the repertoire pre-empts choice for reasons beyond the control of the
user. Legal opinions differ on this question with regard to the rights issue. The United Nations
Human Rights Committee (UNHRC) and the European Commission of Human Rights (ECHR),
 LANGUAGECHOICEIN EDUCATION 31

on the one hand, have decided that the right is restricted for the bilingual to the choice of the
language of the administration of the governing institution (which may not be always the
majority language) in matters of communication with it. ECHR has stated in a case on this
issue: 'It is clear that one has to distort the usual meaning of the passages (Articles 9 and 10) of
the Convention (i.e. the Convention for the Protection of Human Rights and Fundamental
Freedoms), if one is to transform the right to express one's thought freely in the language of
one's choice into a fight to complete, and insist on the completion of, all administrative
formalities in that language' (de Varennes, 1993). On the other hand, the Supreme Court of
Canada, on a similar question, but relating to commercial signs rather than administration,
ruled: 'Language is so intimately related to form and content of expression that there cannot be
true freedom of expression by means of language if one is prohibited from using the language
of one's choice. Language is not merely a means or medium of expression; it colours the
content and meaning of expression'. UNHRC also agreed with this interpretation with regard to
commercial signs in the context of the French-only sign requirement of the Quebec government
(de Varennes, 1993: 168, 176).
De Varennes (1993: 178-9) summarizes the prevailing legal position with regard to freedom
of expression thus: 'Matters relating to the public use of language go beyond what is under-
stood in these jurisdictions as the freedom of expression because ... they attempt to impose a
positive linguistic obligation on states, rather than to protect a fight of non-interference in
private matters relating to freedom of expression'. In other words, the language choice of a
multilingual whose repertoire includes the state language is restricted by the need to reduce the
obligation of the state.
This legal view of course is in the specific context of freedom of expression, but is
potentially extensible to other human rights involving the use of language and to monolinguals
with no knowledge of the state language by the principle of minimum effort to the state and its
institutions (Neustupny, 1984).

1.4. Language rights and freedom of expression

Regarding the nature of language rights, another question to be raised is whether these are
contingent on and derived from other human rights or whether they are a primary right to be
codified independently.
Notwithstanding the fact that language rights are an integral component of human rights, it
might be argued that language rights are contingent upon the rights to freedom of expression.
There is a legal consensus at national and international levels that freedom of expression is not
concerned merely with the content of expression but also with the language of expression,
which is a necessary component of the right to freedom of expression.
If freedomof expressionmeant only freedomas to contentand not to languageas the medium,then the State
could require that opinionsand contentbe expressedonly in the legal languageor languages of the State (de
Varennes, 1993: 180).
There would then be no freedom of expression for those who did not use the state language.
Freedom of expression is defined by European and American Conventions on Human Rights
(incorporating rights to information) as 'freedom to seek, receive and impart information and
ideas of all kinds...either orally, in writing, in print, in the form of art, or through any other
medium of one's choice' (de Varennes, 1993:182). This freedom of expression must clearly be
available to speakers of minority languages. Nevertheless, minority languages may be
considered to be excluded from public expression by the restrictive clause of Article 27 of the
32 E. ANNAMALAI

International Convenant on Civil and Political Rights, which reads: 'in those states in which
ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be
denied the rights in communication with the other members of their group to enjoy their own
culture, to profess and practice their own religion, or to use their language' (emphasis added).
This may exclude the use of a minority language with other language groups, particularly
with the majority language group and with the State whose official language is different. Given
this possibility of restricting the use of a minority language, the right to freedom of expression
may not be adequate for exercising the right to seek and receive information from and impart
information to the State in non-official languages or in languages not sanctioned by the State
for the said purpose.
Language choice then becomes the prerogative of the State and not the right of the individual.

1.5. Language rights and minority rights

The right of minorities under Article 27 of ICCPR to use their language in cultural practices
may be viewed as an aid to preserve their language and culture and to protect them from the
interference of the State. But such civil and political rights of minorities do not provide them
with the right to use their language outside their community, as pointed out above. This has
serious consequences for minority community pursuits of their educational and economic goals.
Thus the rights given to linguistic minorities under civil and political rights covenants do not
adequately safeguard the exercise of their language rights. (Skutnabb-Kangas, 1998).

1.6. Language rights and freedom from discrimination

Another human right in which language is involved is the right to equality and the right to
freedom from discrimination. The formulation of this human right includes language along with
other fundamentals like sex and religion, and states that none of these should be used as a basis
for unequal treatment and discrimination.
The exercise of language rights in this formulation crucially depends on the legal inter-
pretation of equal treatment. The courts have given radically different interpretations of this
concept. Some have interpreted it to mean (for example, with regard to education) that all
children, including children who speak minority languages, should have the same kind of
education, including instruction in the medium of the majority language, in order to be treated
equally. Others have interpreted it to signify that the use of the minority's mother tongue in a
bilingual educational context in order to aid the educational achievement of the minority
language children is not unequal treatment. With such ambiguity surrounding the concept of
equal treatment, the human right to freedom from discrimination does not unambiguously
equate to specific language rights.
All these arguments point to the need for an independent formulation of language rights as
an instrument to protect and maximize the individual's interests, including educational,
economic and political interests, through the use of the language or languages of the
individual's choice.

1.7. Language rights and other issues

It is a moot point whether the right to use a language includes the right to expression per se,
as in situations where through their lack of status persons may be denied the opportunity to
 LANGUAGECHOICE IN EDUCATION 33

speak at all. Such a situation may obtain in group meetings, including board meetings of public
bodies, where the powerless, such as children, juniors, women and the lower class, are not
permitted to speak or to speak freely or are penalized socially if they do speak. This situation
manifests the power relation between members of a group which has no language difference
between them, apart from dialect or idiolect (Pennycook, 1998). Denial of equal opportunity to
speak in such situations is not on the basis of this linguistic difference. It seems that denial of
the freedom to speak which is not based on language difference infringes the right to freedom
of expression rather than the right to language use and that language rights crucially involve the
right to exercise choice between languages.
Another moot point is whether one person's interest can be defined and decided by another
who may be in a position of power. One pedagogical example of this situation is when a teacher
of a second language prohibits the students' use of their mother tongue in the classroom. This is
not simply a matter of teaching method: it conveys the implicit message to the students of the
powerlessness of their language in the socio-political context of language teaching, and
therefore involves language rights. Nevertheless, the teacher in such cases is empowered to
decide what is in the interest of the students. But this action of the teacher in deciding for the
students abrogates a fundamental aspect of language rights, viz. that the user of a language
should decide what is in their own interest. A similar decision by a teacher of a mixed class in
which the target language is the mother tongue for the majority of students and a second
language only for a minority will violate the right to non-discrimination and deny freedom of
expression (Skutnabb-Kangas, 1998). Allowing one person to decide on the interests of another
has the potential to be extended in principle to other agencies, including the State. The principle
of mutual consent mentioned earlier is a solution here. But mutual consent cannot be equal
consent in such situations due to the difference in power relations, so that the possibility of
engineering consent is also real.

2. Language choice in education

This brings us to the question of language choice in education and the rights of the State to
make language policy in education in the interest of the State and the perceived interest of its
citizens and residents. There is a potential for conflict in this area between the interest of the
individual and the interest of the State. This question has been deliberated in the courts in India.
Before examining these cases, a brief background to language in education policies in schools
in India is given.

2.1. Language policy in Indian education

In a functionally multilingual country, the educational system offers more than one language
for the students to learn.
Learning a language formally and developing literacy skills in the language are facilitating
factors in the exercise of the right to use the language of one's choice to further one's interests.
This facilitating factor of language means that individuals must have the right to learn the
language or languages of their choice in school to realize their interests.
From the colonial period, Indian schools offered at least two, and commonly three,
languages, of which the language of the administration, English, was necessarily one. The
different languages were introduced at different stages in the school system and had different
curricular objectives which were decided by the State.
34 E. ANNAMALAI

After independence, the State, at the level of the Union, formulated a language policy for
education called the Three Language Formula (Aggarwal, 1991), which prescribes a minimum
of three languages to be learnt within the ten years of schooling and stipulates that the three
languages should be the Regional language, which is generally the official language of the State
where the student goes to school, and Hindi and English, which are the two official languages
of the Union. Since Hindi is also a Regional language in six States, the schools there are
required to teach one of the other modem Indian languages of their choice, preferably from the
Southern region. The curricular objectives of each language are different and intended to meet
the perceived needs of the State. The State also prescribes the minimum competency level to be
achieved in each language and the time allocated to teaching it.

2.2. Language rights and the Three Language Formula

This language policy has raised some legal and political questions in India, which can be
formulated from the language rights point of view in the following way. First, the prescription
of a minimum of three languages and their specification, including the level of competency to
be reached in each, in practice leaves no choice to the student to increase the number because of
the limited resources of the school and, more importantly, because of exhaustion of curricular
time by other subjects, which cannot be dispensed with by the student in his or her own interest.
This amounts to a de facto, if not a de jure, imposition of the will of the State on the choice of
the student. The alternative of giving the student freedom to choose any three languages does
not find favour with the State because it might conflict with the State's perceived, and even felt,
needs for itself and for its citizens, and because it entails resource cost. Secondly, the question
arises as to whether the number of languages taught in schools can be reduced by a State for
pedagogical or political reasons. The government of the State of Tamilnadu, in a legislative act
expressing the perceived political interest of the people of the State, reduced the number of
languages to two, viz. the Regional language, Tamil, and English. One of the Hindi States, Bihar,
for a period of time removed English from the school curriculum for political reasons, a decision
perceived to be in the interest of the disadvantaged people of the State. Such acts of the State
restrict the range of choice for students, whose interests are thus decided for them by the State.

2.3. Language policy in practice

2.3.1. Two languages in schools in Hindi states. The Three Language Formula has as
objectives national integration and equalizing the language load for the majority language
students of all regions. However, the pedagogical motivation for learning a modem Indian
language, which does not have much economic value for the student, is weak, but the students
have no option to drop it, at least in principle. The state governments in the Hindi region, in
order to dilute the south Indian language compulsion, often make the examination in that
language optional or exclude the examination grades from ranking and promotion to the next
level class. Though, technically, the student has the choice of learning another language in this
situation, from the point of view of acquiring either personally desired or curriculum-prescribed
competence, this choice is illusory and the national objectives of the State at the federal level
are thus defeated.

2.3.2. Two languages in central schools. The Union government restricts the choice of
languages in the school system under its own direct control. This system caters for the needs of
 LANGUAGECHOICEIN EDUCATION 35

the children of its employees and other national public sector organizations who are posted for
duty in different States during their career. This school system has a uniform curriculum nation-
wide, including the languages taught and used as the medium of instruction. This uniformity
serves the interest of the students attending such schools, who would otherwise be forced to
study the different curricula of the states where they happened to reside during their parents'
various postings. It would be an unequal burden for students of such parents to learn a new
language every few years, and would be unlikely to give them any cumulative competence in
the several languages they might have to learn. To conform to national uniformity, these central
schools do not offer any regional language to their students, who have only the choice of Hindi
and English as language subjects and as the media of instruction. These students are, therefore,
not given the opportunity to learn their mother tongue or the language of their transitory or
home states. These schools also admit students whose parents are permanent residents of the
state when there are places available. In addition, private schools, which are expensive, can
affiliate to this central school system. This provides an unequal option in allowing some
students to choose between three and two language schools. Since the schools under the central
school system are either 61itist or expensive or both, this choice in reality is available only to
the advantaged segments of the population. There is, therefore, built-in social and economic
discrimination with regard to access in these schools.

2.3.3. Demand for two languages in state schools. There is a growing demand for such two-
language schools from parents who migrate to other states of their own free will whether for
business or personal reasons. This demand spills over into the school system of the states also.
The state governments, however, want to exercise their rights to make language policy in the
interest of the state and make it obligatory for every resident within their administrative
boundaries to learn the official State language. The question of language rights in this situation
is about the right of a person not to learn the official language of the state of his or her
residence.
If we concede the right of the State to decide on language policy in education for expressed
goals like nation-building, the promotion of multilingualism, the administrative and
communicative needs of the country and strengthening economic opportunities for the people,
language rights becomes a matter of negotiation between the individual and the State. When
there is a conflict of interest between a state and the Union there is a political problem. When
there is a conflict of interest between the minority and majority language speakers in this
negotiation with the State or between the individual and the State, the problem is not only
political but also legal and humanitarian.

2.3.4. Minority mother tongues in the Formula. Another issue is the place in the Formula of
the mother tongue when it is different from the Regional or State language. A pedagogical
solution, which is practised in different forms and to different degrees in different parts of the
world, is bilingual education. But from the rights point of view, the argument of linguistic
minorities is that this is discriminatory and disadvantageous to them and that it violates the
right to equal treatment, as their children are in effect required to learn four languages. The
minorities generally prefer to have their mother tongue as a choice in place of the Regional
language (and not in place of Hindi or English). This choice is largely motivated by their
political interest, which they perceive to lie in challenging the supremacy of the State language.
The issue from the rights point of view for the linguistic minorities bears on their right to equal
treatment and right to language choice.
36 E. ANNAMALAI

2.3.5. Classical languages in the Formula. Some parents (including some in the majority
language community) give precedence to their religious interest and want a choice of a classical
language such as Sanskrit in place of the Regional language. The demand for the mother tongue
or a classical language to be offered in place of the Regional language comes into conflict with
the perceived and the felt needs of the State.
The fundamental conflict is between the rights of the State and the rights of the individual or
the community in the choice of language in education, which is a public domain; education is
also essential for language use in private domains and personal life. The extent to which
negotiation is possible between the individual and the State is a crucial factor in resolving this
conflict.

2.3.6. The minority language as medium. A separate issue, but related to the issue of the
number of languages taught, is the choice of language for medium of instruction. This is related
to the number question because the medium must be taught as a language for it to be effective
as a medium of instruction. The language policy of the states is to use the Regional language as
the medium of instruction in schools. Parents frequently want either their mother tongue or
English as a medium of instruction in schools. The Indian Constitution also provides for the
mother tongue to be the medium of instruction at the primary level, as we shall see later. At all
levels, mother tongue medium has legal protection, in principle enshrined in the Indian
Constitution under the Fundamental Rights provisions, which gives the following rights to
minorities:
Article 30
All minorities, whether based on religion or language, shall have the right to establish and administer
educational institutions of their choice.
This Article permits minorities to choose the medium of instruction in their educational
institutions. Many minority institutions choose English.

2.3.7. Conflicting rights. This choice of English by the minority institutions comes into
conflict with the policy of the State to have the State language as the medium of instruction in
all schools in the state. The State cannot withhold affiliation or aid from such minority schools
as a means of exercising its right to make and implement policy, as this would violate the
Constitution. Such conflicts between the rights of the State and the rights of minorities have
come before Indian courts for legal resolution.

3. Conflict resolution in Indian courts

Before examining a number of conflict resolution cases, a brief description of constitutional
and legal provisions regarding language choice in India may be helpful.

3.1. Constitutional provisions for minorities

There is no specific provision of language rights in the Indian Constitution. Part III, which
deals with the fundamental rights of citizens, provides cultural and educational rights to
minorities for the preservation of language and culture.
Article 29
(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.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid
out of State funds on grounds of religion, race, caste, language, or any of them.
 LANGUAGE CHOICE IN EDUCATION 37

3.2. The language of interaction with the government and of instruction in the school
Part XVII o f the Constitution on Official Language provides the right o f choice o f language
for making representations to the government (Article 350) and gives direction to the State to
provide instruction in the mother tongue at the primary stage (Article 350A, added by a
constitutional amendment):

Article 350
Every person shall be entitled to submit a representation for the redress of any grievance to any officer or
authority of the Union or the State in any of the Languagesused in the Union or in the State, as the case may be.
Article 350A
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.

It m a y be noted that Article 29(1) is not about the right to use language, but is intended to
guarantee the preservation o f culture, so that the responsibility for maintenance o f language as
part o f culture rests with the community. It is, therefore, legitimate to interpret the Constitution
as intending the maintenance o f language to be in the private domain. Similarly, Article 29(2)
guarantees non-discrimination in physical access to education but does not address language
use in education.
Articles 350 and 350A occur in the context o f Official Language, which suggests that they
primarily relate to conducting the business o f the government, i.e. providing administration and
education, and not to the rights o f citizens to seek, receive and impart information. Article 350
does not refer to the mother tongue o f the petitioner but to the language used in the State. Nor
does it refer to the language o f communication used between the government and petitioner.
Article 350A makes the use o f mother tongue as medium o f education at the primary stage an
'endeavour' o f the State and not a right o f citizens, as Article 29(1) does in the case o f language
preservation. Article 350A was operationalized at a meeting o f the Chief Ministers o f all the
states with the proviso that there should be a certain number o f students in a class (10) and in a
school (40) for the endeavour to be undertaken.

3.3. The right to equality and non-discrimination

The above description o f constitutional provisions shows that language rights are not
enshrined as fundamental rights in the Indian Constitution. Without a specific provision for
language rights for the individual in the Constitution, the Indian courts resolve conflicts relating
to language choice based on the above Articles and on the following Articles which guarantee
equality under Fundamental Rights:

Article 14
The State shall not deny any person equality before law or the legal protection of the laws within the territory of
India.
Article 15
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or
any of them.

It may be noted that Article 15 does not specifically include language as a ground for
discrimination (Skutnabb-Kangas, 1998). This issue has come before the courts with regard to
the language requirement for public employment imposed by the State and its institutions.
38 E. ANNAMALAI

3.4. Court decisions

In the cases regarding choice of language to study and medium of instruction, the courts have
been called upon to resolve conflicts between the rights of the citizens, particularly the
minorities, as enshrined in the constitution and the rights of the State and its institutions, such
as universities. The courts have consistently upheld the constitutional rights of citizens,
including minorities, and accommodated the rights of the State by making it attractive for
citizens to choose in accordance with the State's preferred policy.

3.4.1. Karnataka: the position of the official State language clarified. In 1982, the state of
Kamataka in south India formulated a language policy in education stipulating Kannada, the
State official language, as a compulsory language to be learnt as a subject at the primary level
in all schools accredited by it and as the compulsory first language at the secondary level along
with two other languages for the student to choose from a list approved by the State. As the first
language, Kannada consequently enjoyed higher curricular objectives, more curricular time and
higher marks allocated to it than the second and third languages. One of the languages on the
list of those that might be chosen as a second or third language was Kannada at an advanced
level. Since compulsory Karmada would put students with non-Kannada mother tongue at a
disadvantage as regards their academic achievement, additional grace marks (15 points out of a
total of 150 points) were to be awarded to them in their grade sheet in the final examination. It
may be noted that the Karnataka government order does not stipulate the medium of instruction
and does not directly prohibit the use of a minority mother tongue as medium. The implications
of this order are that, ifa school, which may be a minority school, teaches a language other than
Kannada at the primary level, the students at that school will have to learn two languages at the
primary level. At the secondary level, the school will have no choice with regard to first
language.
The objectives of the policy are to give primacy to the State language, Kannada, in the
educational system and to ensure that every student learns the State language in the interest of
the State as well as in their own socio-economic interest and thus becomes an effective
participant in the government of the State.
This order was challenged in the High Court of the State by a 'Linguistic Minorities
Committee' specially formed for this purpose on the grounds that the order violated Articles 14,
29 and 30 of the Constitution (Mallikarjun, 1995).
In a majority judgement (ILR 1989 Kar. 457), the court ruled that the order violated equality
before the law and equal protection under the law because it gave a natural advantage to
Kannada mother tongue children over children for whom Kannada was not the mother tongue
and added a burden to the latter if they wanted to learn their mother tongue in addition to
compulsory Kannada at the primary level. It was also held to violate the right of minorities to
establish and administer educational institutions of their choice, including choice of language,
and the right of the minorities to maintain their language through their schools, a right which
would be impeded by the order obligating the school to allocate lower curricular goals and less
time to the mother tongue. The provision of grace marks for those who did not claim Kannada
to be their mother tongue, which implicitly admits disadvantage to such students, was held to
be arbitrary and liable to abuse. Since the mother tongue medium at the primary state is
directed by Article 350A, it is pedagogically necessary to teach the mother tongue as a
language also; the resulting language load might oblige minority schools to drop teaching the
mother tongue and consequently using it as medium of instruction, which would violate Article
350A.
 LANGUAGECHOICE1N EDUCATION 39

The court, however, conceded the right of the State to have a language policy in education to
help it to fulfil its responsibility to protect the interest of the State, to develop the official State
language, to provide good education, and to enable the residents of the State to learn the official
State language in order to become effective participants in the governance of the State. The
State was also held to have the right to make learning the official language compulsory for
people seeking public employment in the State.
The court gave direction to the State that at the secondary level Kannada may be one of the
three languages to be chosen compulsorily from the list of languages offered. Since the list of
languages offered by the State included more languages than are prescribed in the Three
Language Formula and since the minority mother tongues spoken in the State were included on
the list, the students had the freedom to choose the two official languages of the Union (besides
the compulsory State language), or one of these two official languages and their mother tongue.
The judgement of the High Court was upheld by the Supreme Court in the appeal petition by
the State (2856-57, 1989) and in a writ petition (536, 1991) filed by the English Medium
Students Parents Association.
By making the mother tongue an option against one of the two official languages of the
Union, the court resolved the conflict between the need of the State for an official language to
run the government and the need of the minority mother tongue speaker to avoid discrimination
in education. As a result, this conflict is shifted to the level of the Union.
In the case discussed above, the minorities try to protect the educational interest of their
children and ensure them a competitive edge in school performance. The minorities also try to
protect their political interest by containing the supremacy of the majority language. The right
to language choice they seek is not necessarily the right to use their mother tongue. Their
efforts to protect their interests are directed against the State language and not against the two
more powerful official languages of the Union, Hindi and English. These two languages are
perceived to be equally (dis)advantageous to both majority and minority language speakers.
Learning them, and particularly learning English, is perceived to be in the minorities' economic
and political interests even if it eliminates learning the mother tongue in school. Thus the right
to language choice in education does not necessarily lead to the use of minority mother tongue
in education and to its empowerment.

3.4.2. Bombay: the choice of non-mother tongue as medium of instruction. The state of
Bombay issued an order that children who are not descendents of mixed European-Indian
parentage, but whose mother tongue is English, should not be admitted to English-medium
schools. This order was challenged in the Bombay High Court by the Bombay Education
Society.
The court ruled that this order violated Article 29(2) by denying admission only on the
ground of language. It also violated Article 30, as the order made it effectively impossible for
the Anglo-Indian community, as a minority, to establish and administer their own educational
institutions, since Article 337 of the Constitution requires them to admit a minimum of 40% of
students from other communities to their schools in order to be eligible for financial aid from
the State.

3.4.3. Punjab: the official State language as medium of university education. At the
university level, Guru Nanak University in Punjab issued a notification in 1969 that all colleges
under its jurisdiction would have Punjabi as the sole medium of instruction. This notification
was challenged by D.A.V. College, run by a Hindu organization for students who might not
40 E. ANNAMALAI

have Punjabi but have Hindi as their mother tongue, in the High Court of Punjab (W.T. 256-268
and 271, 1970).
The court ruled that the notification violated Article 30, which gives the right to minorities to
establish and administer educational institutions in the manner of their choice. Their choice, in
the opinion of the court, included the choice of medium of instruction. The court conceded that
it was within the rights of the university to prescribe the medium of instruction, but that it could
not make a language an exclusive medium, as it sought to do in this case, thereby depriving
minority language institutions, such as a constituent college of the university, of their choice of
medium of instruction. Many minority institutions continue English-medium instruction at the
college level.
The rights of the State or the University to decide on the language of instruction to fulfil their
avowed public duties is, therefore, conceded by the court, but with the proviso that this rights
should not interfere with the fights of language choice by minority language individuals and
communities.

3.4.4. Karnataka: the right to establish English medium schools. In another case heard in
1987 in the High Court of Karnataka (W.T. 18313, 1987), Sahayadri Education Trust petitioned
to have the right to establish English medium schools, arguing that the medium of instruction is
the medium of expression and any restriction on the former ipso facto infringes the right to
freedom of expression.
The court, however, did not deliberate on this point, but decided the case on another point,
namely that as other organizations were permitted by the government to establish English
medium schools, therefore the petitioner could not be treated differently.
So, legal determination on the relation between choice of medium of instruction and freedom
of expression is not available.

4. The limitations of existing constitutional provisions for language rights

It might appear that the decisions of the courts in favour of linguistic minorities suggest that
the fundamental right to equal treatment and non-discrimination in education, and the fight to
maintain culture and establish educational institutions are adequate to ensure the exercise of
language rights in education by minorities. Specific language rights legislation is not, therefore,
needed for this purpose, even if it is needed for other purposes. The absence of legally
sanctioned, specific language fights, however, is not without problems in relation to language
use in education also, as we shall see.

4.1. Obligating the State vs empowering the individual

The use of mother tongue in primary education, as we saw above, is an obligation on the
State rather than an individual fight.
The failure of a state to meet this obligation does not, therefore, constitute a violation of
human rights or denial of fundamental rights to a citizen. It is only an instance of non-
performance on the part of the State, for which it may give practical reasons.
It also makes it possible for the State to lay down conditions for meeting the obligation, as in
the prescription of a minimum number of students required for the use of a minority mother
tongue as the medium of instruction in primary education. The school may bring pressure on
the students and their parents not to choose their own language so that the minimum number
 LANGUAGE CHOICE IN EDUCATION 41

condition is not met. The State also may bring up other grounds for not providing minority
mother tongue education, such as non-availability of qualified teachers and teaching materials,
assignment of dialect status to the minority language, etc.
Practical considerations such as these cannot be cited as violations of human rights. The
Linguistic Minorities Commission, a watch-dog body provided for in the Constitution, lists
instances of non-compliance by the states in its annual reports submitted to the Parliament for
Presidential directive, but in general no executive corrective action takes place. Any corrective
action has been through court action such as has been described above.
That the obligation of the State has not been met can be seen by the gradual reduction in
the number of languages used in schools in India. The number of languages provided (but not
necessarily taught) in the school curriculum at the primary level dropped from 81 in 1970
(out of about 200 possible languages) to 44 in 1990. There was also a reduction from 47 in
1980 to 43 in 1990 (NCERT, 1992) in the number of languages used as the medium of
instruction.

4.2. The disadvantage of derived language rights

A major disadvantage of deriving language rights from other human, civil and political rights
is that the burden of proof that there is unequal treatment or discrimination or that the school is
a minority institution lies with the minority.
Secondly, the denial of these rights is contested politically or legally only by minorities who
are politically conscious and economically resourceful. Even among these minorities, it is the
interest of their 61ite that is served. There has been, for example, no case filed for mother tongue
use in education by a tribal community in India, where there are about 100 tribal languages
(Annamalai and Mallikarjun, in preparation). Thirdly, and most importantly, language rights
cease conceptually to be primary and inalienable and come to be determined by ameliorative
factors like equalization of language load, equalization of performance by grace marks, etc.

4.3. Language rights and the mother tongue

It was noted earlier that derivative language rights are liable to be used by the minorities
themselves to opt for a language of greater power, typically English. Alongside this, there are
also cases of parents declaring English as their mother tongue to get their children admitted to
English-medium schools, when the law requires mother-tongue medium in schools. An
individual's mother tongue must be taken to be what he or she declares it to be. The state does
not, and should not, decide the individual's mother tongue by any means, including a test, as
this may lead to manipulation. It is therefore not illegal for a citizen to declare that English is
their mother tongue.
However, language rights, as we defined them at the beginning of the paper, guarantee the
individual's freedom to choose any language for any designated purpose. Therefore, anyone
will have the right to choose English for use in school, even without having to declare it as their
mother tongue. The pull of English has led to the present situation in India in which individuals
either declare English as their mother tongue (typically a majority strategy to claim minority
status) or access English through central schools and private schools which are affiliated to the
Central Board of Education or have international accreditation (typically an 61ite strategy).
Majorities join English-medium schools established by minorities using the constitutional
provision, or invoke minority status under the Constitution on grounds other than language (e.g.
42 E. ANNAMALAI

religious practice) in order to establish educational institutions with the language of instruction
of their choice.
As we have seen, linguistic minorities who secure a place for the minority language in the
education policy of the State in India do not necessarily use that provision for their children to
learn their mother tongue in school. The question then arises as to whether exploiting the
constitutional provisions relating/relatable to language or using the given definition of language
rights as freedom of choice of language in order to ensure a non-mother tongue medium of
instruction is an abuse of the concept of language rights. It is true that this exploitation by the
people is partly motivated by the fact that, in spite of the policy, the resources provided by the
State to minority schools are limited and result in poor quality education. Instead of using legal
and political means to demand from the State the resources necessary to improve the quality of
the minority schools, the choice of non-mother tongue, i.e. English, medium is made to obtain
quality education.
Although the choice of a language such as English is motivated by the desire for quality
education and by the perceived economic and political interests of the minorities, so long as the
choice protects and maximizes their interests, it cannot be said to violate the principle of
language rights.

4.4. Solving the problem: making a rational choice o f mother tongue

The decision as to what is in the interest of the language user does not, and should not, rest
with the State, community leaders or social activists, however laudable their intentions may be.
It is the right of the individual alone to decide their own interest. The role of others is limited
to providing all that is necessary to enable the individual to evaluate their interest, and
subsequently to helping the individual to realize their interest with regard to language choice in
education in the everyday world. The only allowable exception is in the case of children, whose
interest may be decided by their parents or guardians.
For a person to make a rational decision about their interest with regard to choice of language
in education, the following are necessary:
- - t h e resources and quality of minority language schools should be upgraded so that they are
on a par with majority language schools provided by the State and by the community. The
public cost in this is unavoidable to enable protection of cultural and linguistic diversity and
harmony, just as there is public cost in the preservation of ecological diversity and harmony;
- - t h e State is justified to meet this cost as it should have as its goal realizing the educational
potential of every person;
--there should be a sustained educative campaign, perhaps after the model of consumer
awareness campaigns, about the consequences of the choice of a particular language in order to
enable the individual to make an informed choice. Any right will be meaningful only when the
person exercising it is well informed as to the ramifications of his or her action. This need for
information in turn makes freedom of expression a necessary condition so that activists may
provide information to the individual to enable them to make the right language choice with
regard to all aspects of their interest. This follows from the fact that language rights are indepen-
dent human rights which will be ineffective if invoked in isolation from other human rights.

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Annamalai, E. (1987) Languagerights and languageplanning. New Language Planning Newsletter 1.2.
 LANGUAGE CHOICE IN EDUCATION 43

Annamalai, E. and Mallikarjun, B. (Eds) (In preparation) Judgements on language in Indian courts.
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India Conference of Dravidian Linguists, Thiruvananthapuram.
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Varermes, F. de (1993) Language and freedom of expression in international law. Human Rights Quarterly 15.