Linguistic Minorities

Article 347, Special provision relating to language spoken by a section of the population of a State. "On a demand being made in that behalf the President may, if he is satisfied that a substantial proportion of the population of a State desire the use of any language spoken by them to be recognised by that State, direct that such language shall also be officially recognised throughout that State or any part thereof for such purpose as he may specify."

Article 350A, Facilities for instruction in mother-tongue at primary stage. "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."

Article 350B, Special Officer for linguistic minorities. "(1) There shall be a Special Officer for linguistic minorities to be appointed by the President. (2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned."

Articles 350A and 350B were inserted by the Constitution (Seventh Amendment) Act, 1956, with effect from 1 November 1956. That is from the Constitution's own footnote, and TMA Pai records the same amendment.

Broken down

Article 347 has four conditions, and all four must be met.

1. A demand must be made. The President does not act on his own motion. Somebody has to ask.
2. A substantial proportion of the population of a State must desire the recognition. Not a majority, and not a handful. The word is deliberately imprecise.
3. The President must be satisfied. In practice this means the Union Government must be satisfied.
4. The direction is for a specified purpose. The language is recognised "for such purpose as he may specify", and may be recognised for the whole State or only "any part thereof". This is not a second official language across the board.

Article 350A is an endeavour, not a guarantee. Note four things in its wording. It binds "every State and of every local authority within the State", so a municipal school is covered. It requires "adequate facilities", not a separate school. It is confined to "the primary stage of education", so it does not reach secondary or higher education. And it gives the President a power to issue directions, which converts a soft duty into something a Union Government can enforce.

Article 350B creates an office, not a right. The Special Officer investigates and reports. He does not adjudicate, and nothing in the article makes his report binding. The teeth, such as they are, are in publicity: the report must be laid before each House of Parliament and sent to the State Governments concerned.

Who counts as a linguistic minority

Facts. T.M.A. Pai Foundation v. State of Karnataka, decided on 31 October 2002 by a Bench of eleven. The report we hold carries no report reference, so the case is given by its date. Private educational institutions, minority and non-minority, aided and unaided, challenged the web of State rules governing their admissions, fees and staff. The matter had travelled from five judges to seven to eleven, partly because the Forty-second Amendment had moved education from the State List to the Concurrent List, so that the older case law had been decided in a different constitutional setting. Eleven questions were framed, of which the first was the meaning of "minorities" in article 30.

Held. "Linguistic and religious minorities are covered by the expression 'minority' under Article 30 of the Constitution. Since reorganisation of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise." Kirpal C.J. gave the reason in a sentence a student should be able to reproduce: if the unit were the whole of India, "within the State of Andhra Pradesh, Telugu speakers will have to be regarded as a 'linguistic minority'. This will clearly be contrary to the concept of linguistic states." And because article 30 puts religious and linguistic minorities on the same footing, whatever unit governs one governs the other.

Why it matters. It fixes the gateway. Every claim under article 30 by a linguistic minority begins with proving minority status, and after Pai Foundation that is a head count in the State, not in the district and not in the country. Ruma Pal J. traced the same reasoning through Part XVII, treating articles 350A and 350B, added in 1956, and article 30(1A), added in 1978, as successive strengthenings of protection on a linguistic basis. The earlier Kerala Education Bill reference had already rejected the locality as the unit, partly because that reading was contrary to the language of article 350A, but it had left the wider question open; Pai Foundation closed it.

The medium of instruction

The classic authority on a State compelling a minority institution to teach in the State language is D.A.V. College v. State of Punjab. Its report is not in this book's authorities and has not been read, so no citation is printed for it and none should be invented.

What can be stated is what T.M.A. Pai Foundation, which has been read, records of it. Punjabi had been sought to be enforced as the sole medium of instruction and of examination. The college concerned used Hindi as its medium and Devanagari as its script. Pai Foundation records that, apart from holding that the State Legislature lacked competence to make Punjabi the sole medium, the Court reaffirmed that the college, though run by the Hindu community which is the national majority, was in Punjab a religious minority with a distinct script, so the State could not compel it to teach in Punjabi or to examine in that language in the Gurmukhi script. Pai Foundation also records that on the question of the unit, D.A.V. College took the position that minorities are to be determined in relation to the legislation impugned, so that a State law calls for a State-wide count.

Two things students confuse

A worked example

Twelve thousand Konkani-speaking families live in a district of a State whose official language is Kannada. Their children attend municipal primary schools where all teaching is in Kannada. The community wants three things: teaching in Konkani in those schools, official recognition of Konkani in the district, and a school of its own.

Step one, the municipal schools. Article 350A applies, because it binds "every State and of every local authority within the State" and covers "the primary stage of education". The obligation is to provide adequate facilities for instruction in the mother tongue, not to open a Konkani school. If the local authority does nothing, the route is to press for a presidential direction under the second limb of the article.

Step two, official recognition. Article 347. A demand must be made; the President must be satisfied that a substantial proportion of the population of the State desires it; and any direction can be limited to "any part thereof", so recognition confined to that district is exactly what the article contemplates.

Step three, their own school. Article 30(1), not Part XVII. And the first question is whether Konkani speakers are a linguistic minority, which on T.M.A. Pai Foundation is decided by their numbers in the State, not in the district where they are concentrated.

Step four, if the State refuses to recognise the school unless it teaches in Kannada. That is the D.A.V. College question. On what Pai Foundation records of that case, a State cannot compel a minority institution to adopt the State language as its sole medium.

Step five, what the Special Officer adds. Nothing directly. He may investigate the failure and report it to the President, and the report reaches both Houses. It is a way of creating pressure, not a remedy.

What it does NOT mean

It does not mean article 350A gives a child an enforceable right to a Konkani class. The article is framed as an endeavour of the State. Its enforcement mechanism is a presidential direction, not a decree.

It does not mean a linguistic minority is a minority everywhere it is thin on the ground. After T.M.A. Pai Foundation the count is State-wide. A community that is a majority in its own State does not become a minority by moving into a district where it is few.

It does not mean article 347 creates a second official language of the State. Recognition is for a purpose the President specifies, and may be for part of the State only.

It does not mean religious and linguistic minorities are treated differently under article 30. They are expressly "put at par", which is why the same unit governs both.

Quick revision

• Articles 350A and 350B were inserted by the Seventh Amendment 1956, with effect from 1 November 1956, in the year of linguistic reorganisation.
• Article 347: on a demand, the President may direct that a language desired by a substantial proportion of a State's population be officially recognised throughout the State or any part, for a specified purpose.
• Article 350A: endeavour of every State and every local authority to provide adequate facilities for instruction in the mother tongue at the primary stage to children of linguistic minority groups; President may direct.
• Article 350B: a Special Officer appointed by the President investigates safeguards for linguistic minorities and reports; reports go to both Houses and to the States.
• T.M.A. Pai Foundation (2002, eleven judges): the unit for determining a minority under article 30 is the State, not the whole of India; religious and linguistic minorities are on a par.
• D.A.V. College v. State of Punjab is the medium of instruction authority. Its report has not been read here, so it is named without a citation.

Test yourself

1. Quote article 350A and identify the four limits its own wording contains.

2. What must be established before the President may act under article 347, and how far may the direction go?

3. Why does the reorganisation of States in 1956 explain both the insertion of articles 350A and 350B and the holding in T.M.A. Pai Foundation on the unit?

4. Distinguish the Part III route and the Part XVII route for a linguistic minority, and say what each secures.

5. What are the limits of the Special Officer's office under article 350B?