Harmonising Constitutional Vision and Judicial Realities: Upholding Rights of Linguistic Minorities

Introduction

The scholarly discussion pertaining to the provisions delineated within Articles 29 and 30 of the Indian Constitution¹ has predominantly centered around matters concerning religious minority groups, exhibiting a discernible inclination towards this dimension, whilst concurrently manifesting a relative disregard for the substantive contributions and significance of linguistic minority groups in safeguarding their interests. These provisions, by design, aim to safeguard the linguistic diversity inherent in the nation, curtail instances of language-based discrimination, and confer upon these minorities the prerogative to manage and oversee educational institutions aligned with their preferences. However, it is noteworthy that both the formulation of these provisions and their subsequent elucidation by the judiciary have encountered substantial constraints in upholding the rights of linguistic minorities.

Constitutional deliberations

In the discussions regarding the protection of linguistic minorities Shri Lokanath Misra’s objection to the initial draft centered around the idea that the significance of diversity must be viewed within a broader context of achieving national unity. He proposed that genuine unity is essential for effective State administration and governance, going beyond mere adherence to external legal principles. To achieve this authentic and harmonious unity, he advocated for the development of a comprehensive framework encompassing philosophy, culture, and language which was common to the entire nation. His proposal was not accepted as it was clearly pointed out by H.C. Mookherjee and Maulana Hasrat Mohani that it is conceivable to contemplate the notion of cultural coherence, even in the presence of linguistic variances across various regions within India.²

The initial draft of the Constitution adopted the following phraseology with respect to linguistic minorities: “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script and culture of its own shall have the right to conserve the same.”³

Z.H. Lari proposed that the phraseology of Article 23 of the Draft (Article 29 in the Constitution of India) must be restored to as it was drafted by the sub-committee of the Fundamental Rights Committee which was approved by the House and says, “Minorities in every unit shall be protected in respect of their language, script and culture, and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect”⁴ rather than what was incorporated into the original draft.

It can be said that the retention of the clause in the manner it was initially formulated and approved by the Assembly would result in an effective avenue for minority groups to ensure the realisation of the Assembly’s objectives. Examining the language employed in the Draft Constitution, it is evident that the provision stipulates the entitlement of a minority or a specific segment of citizens to preserve their respective languages. However, the crux of the matter lies in discerning the implications of this provision. It essentially grants the right for a group of citizens to use their mother tongue for private interactions. Nonetheless, a critical concern arises: Does this provision extend to permitting the utilisation of the minority’s language for primary education funded by the State especially when the States were organised on linguistic grounds?

Admittedly, another clause within the same article affords minorities the opportunity to establish their own educational institutions, thereby enabling the provision of elementary education in their mother tongue in accordance with the provisions of the aforementioned clause (1).⁵ Yet, when considering the likelihood of the State establishing its own educational institutions as is expected there emerges a scenario in which numerous minority groups may lack the means to establish independent institutions. In this context, the pivotal query emerges: Can a minority rightfully demand that the State-implemented educational institutions, mandated under various legislative frameworks at the municipal or provincial levels, provide elementary education in the language of that minority?

Dr Ambedkar justified the change in phraseology by explaining that the amendment merely established a duty and introduced a provision stipulating that although the State retains the authority to impose restrictions on language, culture, and script rights, any legislation formulated should refrain from being characterised as oppressive. It is important to clarify that the intention was not to completely deprive the State of its capacity to enact laws impacting these realms; rather, the emphasis was on avoiding oppressive legislation. It is evident that the initial safeguards provided by the original article were notably vulnerable, resting largely on the benevolence of the State. Contrastingly, the current disposition articulated in Article 23⁶ elevates this safeguard to the status of a fundamental right.⁷

Further it was proposed by Mr Lari that every segment of the populace residing within the geographical confines of India or any of its delineated regions, characterised by a discernible language and writing system, shall possess the privilege to ensure that foundational education is administered to their offspring employing the specified language and script, this was proposed especially keeping in mind the populace speaking Urdu and the populace from Bengal and Madras Provinces.⁸ It was Aizaz Rasul who proposed that “every segment” be replaced by “minority”. While the intention behind the amendment suggested by Mr Lari and Mr Aizaz was to guarantee that a child could access fundamental education in their mother tongue, it is important to note that this objective does not intend to prevent minority children from acquiring proficiency in the official language of the governing State. Despite this, the amendment was not moved.

It was opposed by Mr Santhanam that the State did not have the capacity to provide education to every child in his or her mother tongue. It was very firmly rejected by Mr Govind Vallabh Pant evident from his remark that “Mr Lari cannot expect us to feed the fad of anybody at the expense of the taxpayer”. He said it was impracticable to afford teachers of 2 languages when there are 1000 boys preferring one of the languages and just 10 the other.⁹

Further, Prof. K.T. Shah suggested that the words “develop” must be added to the section as language and culture is not a static phenomenon but a dynamic concept that evolves with time. However, this too did not find a place in the final draft.¹⁰

Shri Jaipal Singh clearly pointed out that one commonly associates languages with well-developed literary traditions and the presence of a script. He emphasised the importance of recognising that languages lacking a script also warrant preservation efforts. Despite this observation, what will constitute a “minority language” as provided by the article was left open to interpretation.¹¹

What is clearly evident from these debates is that the discussions in the Assembly that while the rights of linguistic minorities were drafted the majority members’ affirmation was driven not by the motive of preserving the linguistic minorities, but rather the capacity of the State and practical considerations. It was not given assent by Dr Ambedkar too given the fact that when education itself was not justiciable, then how can education in a particular language be justiciable? Further, the obligation was not imposed on the State in the manner of positive rights to preserve a minority language rather it was in the form of a negative right that the State will not impose a majority language on the minority community. Despite this, judicial pronouncements have indirectly imposed the majority language on the minority community.

Tracing judicial interpretations

The initial explication of the term “linguistic minorities” was provided by the Supreme Court within the context of the case DAV College v. State of Punjab¹². In this case, it was asserted that, with regard to Article 30(1), a linguistic minority is a group that possesses a distinct spoken language, thus necessitating a separate linguistic identity. Furthermore, the congruence of linguistic and religious factions is not obligatory. Additionally, the presence of a distinct script for the language spoken by the minority is not a prerequisite for its classification as such; indeed, instances exist where languages lack proprietary scripts, yet the segments of the populace utilising those languages are still deemed linguistic minorities. Consequently, a linguistic minority pertains to a populace whose native language differs from that of the predominant majority within a given State.¹³

In this case the Court held that the university’s exclusive adoption of Punjabi as the sole medium of instruction for its constituent colleges impinges upon the rights of the petitioners, as it infringes upon their prerogative to utilise and administer their own script and educational establishments. The entitlement of minority groups to establish and oversee educational institutions in accordance with their preferences inherently encompasses the prerogative to select the medium of instruction. This interpretation is an outcome of the amalgamation of Articles 30(1) and 29(1). It is crucial to note that no measure of inconvenience or challenges, whether of an administrative or financial nature, can serve as a justifiable basis for encroaching upon the rights that have been constitutionally safeguarded.

Prominent instances of legal contention regarding rights of linguistic have emerged primarily from the most populous non-Hindi States, namely, Karnataka, Maharashtra, and Tamil Nadu. The conceptual spectrum of feasible policy approaches available to States concerning the incorporation of regional languages within the education framework encompasses several possibilities: the provision of regional language instruction as an optional course; its requirement, yet without exclusivity or primary emphasis; its primary role in instruction; and its exclusive adoption as the medium of instruction. Judicial deliberations have gradually formulated a framework that stratifies diverse educational levels, delineating the authority of linguistic minority groups to administer their own educational institutions in a manner that limits the inclusion of regional language instruction as the age of the student progresses.¹⁴

In its early stages, the judiciary espoused the perspective that States lacked the jurisdiction to mandate the inclusion of regional language instruction within primary education. Their authority was perceived to extend merely to designating the regional language as a compulsory instructional medium at the secondary level. This approach allowed individual students the discretion to opt for the regional language as their primary medium of instruction or otherwise. Subsequently, the courts granted States the prerogative to establish the regional language as a medium of instruction within primary education, commencing from the fifth standard, as exemplified in Usha Mehta v. State of Maharashtra¹⁵. Furthermore, the courts extended this allowance even to the first standard, as evidenced in K.R. Ramaswamy v. State¹⁶. In both these cases, the Court observed that the authority of Articles 29¹⁷ and 30(1)¹⁸ is circumscribed by the State Government’s capacity to establish regulations governing the management of institutions. The subsequent cases including these have upheld the observation made in Sidhrajbhai Sabhai v. State of Gujarat¹⁹ that the core liberty lies in the ability to institute and manage educational establishments, encompassing genuine educational institutions that cater to the educational requirements of citizens or specific segments thereof. Regulations that are formulated in genuine pursuit of enhancing instructional effectiveness, maintaining discipline, upholding health, and hygiene standards, promoting morality, preserving public order, and similar valid interests can indeed be enforced. These regulations are not tantamount to encroachments on the essence of the safeguarded right. The problem with such observation is that regulations regarding instructional effectiveness can indirectly encroach on minority rights as is evident from these cases.

The Usha Mehta case²⁰ pertained to a Maharashtra State Government Policy mandating the inclusion of Marathi language education across all schools within the State. This policy posed a challenge to English medium schools operated by the Gujarati linguistic minority, as they were required to teach four languages (Hindi, English, Marathi, and their mother tongue, Gujarati) deviating from the established “three-language formula”. The central issue at hand revolves around the constitutionality of enforcing Marathi language instruction in schools managed by linguistic minorities. The Court ruled that the State’s imposition of its regional language as a compulsory subject for linguistic minorities is a reasonable measure. The court argued against interpreting Articles 29 and 30 in a manner that confers a negative right to exclude the study of regional languages. The decision refuted the notion that residents of a specific State cannot be obligated to learn its regional language, even for linguistic minorities residing in different States, positing that acquiring familiarity with the regional language is a suitable expectation for such minority groups. Justice Rajendra Babu’s remark that, “In our view the resistance to learn the regional language will lead to alienation from the mainstream of life resulting in linguistic fragmentation within the State, which is an anathema to national integration”²¹ is noteworthy. The problem with this ruling is that while children having the majority language as their mother tongue can study just 3 languages, the children belonging to the linguistic minority have to study 4 to include their mother tongue as well. While it clearly leaves a “choice” for the linguistic minority to choose their mother tongue, the extra burden is bound to deter them from making this choice. The same problem of making the regional language one of the 3 languages arose in Linguistic Minorities Protection Committee v. State of Karnataka²² and in that too the Karnataka High Court adopted the same line of reasoning. Even if Kannada was made a compulsory language to be opted as either the first, second or third language, a student whose mother tongue is Kannada is left with choosing 2 other languages while a student whose mother tongue is not Kannada, has been left with just 1 choice, which often is English as other 2 choices are taken up by Kannada and his mother tongue. The very idea laid out in St. Stephen’s College v. University of Delhi²³ that the State’s capacity to establish regulations is permissible as long as linguistic minorities retain the freedom to govern their own institutions is often a façade concealing the underlying bias that places linguistic minorities in a disadvantaged position.

In State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools²⁴, a five-Judge Constitutional Bench of the Supreme Court confronted a constitutional contention regarding a Karnataka statute that mandated the use of the mother tongue as the medium of instruction for the first to fourth standards, applicable to both Kannada speakers and linguistic minority groups. The Supreme Court concluded that a careful examination of Article 350-A of the Constitution²⁵ reveals its mandate for both States and local authorities within each State to furnish sufficient resources for teaching in the mother tongue during the primary stage of education for children belonging to linguistic minority groups. The Court emphasised that the State cannot impose a prerequisite for recognition, whereby the medium of instruction for students in Classes I to IV within minority schools safeguarded under Articles 29(1) and 30(1) of the Constitution, as well as within privately operated unaided schools enjoying the prerogative to pursue any occupation as outlined in Article 19(1)(g) of the Constitution²⁶, must necessarily be the mother tongue of the students. It was underscored that even linguistic minority communities possess the entitlement to select the language of instruction that aligns with their educational preferences. The discernible implication here resides in the fact that the Supreme Court, while underscoring the pivotal principle of “choice” for minority groups, as validated through its adjudications in instances such as Usha Mehta case²⁷ and K.R. Ramaswamy case²⁸, is paradoxically eroding the very essence of this choice that it endeavours to uphold.

Moreover, this particular construal of the provision disregards a fundamental aspect: the majority of linguistic minority groups lack the requisite financial resources to establish and operate their own educational institutions.²⁹ In instances where the State’s genuine intention resides in the preservation of minority languages, a corresponding avenue must be provided for such preservation. However, when such an undertaking becomes implausible for the State due to the intricate web of linguistic diversity prevailing within the nation, the imposition of mandatory regional language instruction exacerbates the burdens faced by these minority groups and concurrently curtails the range of educational options available to them.

The potential ramifications of this phenomenon hold significant implications for the preservation of languages among minority groups, particularly those that belong to marginalised segments. The manifestation of linguistic dominance and the propensity for inadvertent linguistic assimilation is notably discernible in the empirical data, particularly in the context of languages such as Gondi, which is the vernacular of the Gond tribal community situated in southern India below the Vindhya Mountain Range, serving as a representative illustration. Gondi is spoken across multiple States, yet it experiences subjugation under the sway of the respective dominant language of the State of domicile, leading to a gradual erosion of the Gond identity and tongue.³⁰ The absence of instruction in the mother tongue within the educational framework for children belonging to linguistic minority groups is frequently cited as a pivotal factor contributing to the decline in the prevalence of minority languages. These linguistic minority communities find themselves compelled to opt for the language of instruction utilised within the school environment, which typically aligns with the dominant language prevalent in the given area or State where the school is situated. This predicament becomes notably precarious for indigenous communities like the Gonds and Santals, who are ostensibly promised instruction in their native languages like Gondi or Chiki (Santali), but invariably find that such commitments are seldom fulfilled in practice. As pointed out by Srinivas Rao “the number of languages used in schools at the time of the third All India Educational Survey (1973) was 67 and by the sixth All India Educational Survey (1993) the number has come down to 41. At the primary stage, the number of languages used in schools has come down from 43 in the fifth survey (1986) to 33 in the sixth survey”.³¹ He further observes that the implementation of the three-language formula in the Hindi speaking northern region has been characterised by lacklustre and discouraging performance.

Weaving constitutional aspiration into judicial reality

The elucidation offered by the judiciary concerning the definition encompassing “linguistic minorities”³² and the interpretation envisioned by Shri Jaipal Singh within the proceedings of the Constituent Assembly³³ exhibit harmonious alignment. Hence, even though this alignment failed to secure its place within the formulation of the provision, its validation has been realised through judicial interpretation. However, the issue emanating from the vulnerability of minority languages due to the judicial construal of the aforementioned articles could have been averted had the provision been crafted according to the approach proposed by Mr Z.H. Lari, which encompassed not only the entitlement of linguistic minority groups to safeguard their language and oversee its utilisation but also the stipulation that “no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect”. The actual legal reality has contradicted Dr Ambedkar’s rationale for omitting the phraseology recommended by Z.H. Lari.

The examination of judicial precedents serves to elucidate the inherent constraints embedded within the language encapsulated in Articles 29³⁴ and 30³⁵ of the Constitution. The articulation of these provisions imposes the onus of preservation squarely upon the minority entity itself, consequently affording the State a degree of exemption from any such obligation. The deliberations within the Constituent Assembly, as reflected in its debates, offer insight into the perspective that the term “minority” was primarily construed through the lens of religious affiliation, rather than linguistic distinctions. Furthermore, the apprehensions stemming from the tumultuous circumstances of the partition period steered the Assembly members away from enacting specific provisions tailored to the conservation of minority languages. This paradigm is riddled with notable predicaments, particularly given the fact that linguistic minorities, due to their inherently modest numerical presence, tend to be overlooked within the discourse pertaining to minority concerns, thus engendering an unjust and misguided neglect.

In conclusion it can be said that the judicial constructions pertaining to linguistic minorities, enshrined within the framework of Articles 29 and 30, exhibit limitations in fully aligning with the foundational intent of the makers of the Constitution. These limitations could potentially have been averted through an alternative articulation of the provisions, as espoused by certain constituents of the Constituent Assembly or by a more considerate judicial interpretation that lays emphasis on the conservation of a minority language rather than practical considerations of efficiency.