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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.

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.

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.

“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.