Enforcing Language Rights

The scheme of safeguards the Commissioner monitors. These are administrative rather than statutory and were agreed at Chief Ministers' conferences and through the States Reorganisation Act's own provisions. They include instruction in the mother tongue at the primary stage; publication of important government rules and notifications in a minority language where a proportion of the population speaks it; acceptance of representations in a minority language; and advance registration of linguistic preference of parents.

The three-part weakness, and it is the answer's core.

One: the reports are reports. Nothing in article 350B makes a recommendation binding, and there is no provision even requiring an action-taken memorandum of the kind section 12 of the National Commission for Minorities Act requires.

Two: the safeguards are administrative, not statutory. A scheme agreed at a conference of Chief Ministers is not a law, and a person cannot sue on it.

Three: article 350A is an endeavour. The obligation the Commissioner is monitoring is itself unenforceable, so an adverse report establishes a failure to endeavour and nothing more.

What "government agencies" covers besides the Commissioner

The State-level machinery. Most States have a department or a cell for linguistic minorities, and several have appointed their own officers.

The National Commission for Minorities. Its jurisdiction is over the six NOTIFIED religious minorities, so it does NOT cover linguistic minorities as such. That is a distinction MU's question invites and students regularly get wrong: the constitutional office for linguistic minorities is article 350B's, and the statutory Commission of 1992 is for religious minorities.

The education departments, which decide recognition, affiliation and the medium, and which are therefore the agencies whose decisions the judicial channel reviews.

And the Presidential power in article 350A itself, under which the President may issue such directions to a State as he considers necessary or proper for securing the provision of mother-tongue facilities. It is the strongest administrative instrument in Part XVII and it has been little used.

The assessment MU asks for

The judiciary has done more than the agencies, and the reason is structural. The judiciary is enforcing FUNDAMENTAL RIGHTS; the agencies are monitoring an ENDEAVOUR and an administrative scheme.

The protection is therefore distributed by capacity. A community with an institution, a trust and access to a lawyer gets the benefit of articles 29, 30 and 19(1)(a). A dispersed minority with no institution gets an annual report.

Two reforms are usually proposed, and an answer that offers them is a better answer. First, putting the safeguards on a statutory footing so that they can be sued on. Secondly, giving the Commissioner the civil-court powers of inquiry and the action-taken memorandum that the National Commission for Minorities has under sections 9(4) and 12 of its Act.

A worked example

A Bengali-speaking population in a district of Odisha finds that no primary class in its language exists, that district notifications are issued only in Odia, and that a State-aided school has refused admission to a Bengali-speaking child.

The refusal of admission. Enforceable at once. Article 29(2), on Bombay Education Society, by petition under article 226.

The absence of a primary class. Article 350A is an endeavour, so no writ lies to compel the class. The route is a representation to the Commissioner for Linguistic Minorities under article 350B, and, if the Union will act, a Presidential direction under the second half of article 350A.

The notifications. Part of the administrative scheme of safeguards, not a statutory right. A representation, and a report.

And if the community establishes its own school. Article 30(1) protects it, article 30(2) forbids discrimination against it in the grant of aid, and the State cannot compel Odia as its medium.

What the example shows. Three of the four grievances have no enforceable remedy, and the one that does is the one that fits a fundamental right. That is the finding MU's question is looking for.

What this does NOT mean

It does not mean the administrative channel is useless. The Commissioner's reports are the principal published record of how States treat linguistic minorities, and they are used in litigation and in policy.

It does not mean article 350A is meaningless. It is a constitutional direction, it supports a Presidential direction, and it colours the reading of articles 29 and 30, as Associated Management shows.

And it does not mean the courts can supply what the agencies do not. A court can stop a State compelling a medium; it cannot open a school, which is exactly the limit set out in [The Judiciary as an Engine of Social Change].

Quick revision

Two channels. Judicial: articles 29(1), 29(2), 30 and 19(1)(a), fundamental rights enforceable under articles 32 and 226; results in Bombay Education Society, D.A.V. College and Associated Management; limit, it prohibits and cannot provide. Administrative: article 350B's Special Officer, designated the Commissioner for Linguistic Minorities, headquarters at Allahabad, who investigates and reports to the President, the reports being laid before Parliament and sent to the States; plus the administrative scheme of safeguards and the Presidential direction power in article 350A. Three weaknesses: the reports bind nobody and there is no action-taken memorandum; the safeguards are administrative not statutory; and article 350A is an endeavour. The National Commission for Minorities covers the six NOTIFIED RELIGIOUS minorities, not linguistic ones.

Test yourself

1. Which provisions can a court actually enforce for a linguistic minority? Articles 29(1) and 29(2), article 30(1), (1A) and (2), and article 19(1)(a) as applied to the medium of instruction. All are fundamental rights and are enforceable under articles 32 and 226.

2. What does article 350B provide, and what are its limits? A Special Officer for Linguistic Minorities appointed by the President, whose duty is to investigate all matters relating to the constitutional safeguards for linguistic minorities and report to the President, the reports being laid before each House and sent to the State Governments. Its limits are that the reports bind nobody, that there is no requirement of an action-taken memorandum, and that the obligation being monitored, article 350A, is itself only an endeavour.

3. Does the National Commission for Minorities protect linguistic minorities? No. Its jurisdiction under the Act of 1992 is over communities notified as minorities by the Central Government, which are the six religious minorities. The constitutional office for linguistic minorities is the Special Officer under article 350B.

4. What is the strongest administrative instrument in Part XVII, and how much has it been used? The power in the second half of article 350A for the President to issue such directions to a State as he considers necessary or proper for securing facilities for mother-tongue instruction at the primary stage. It has been little used.

5. State the assessment and two reforms. That the judicial channel has produced far more because it enforces fundamental rights, while the agencies monitor an endeavour and an administrative scheme, so protection is distributed according to a community's capacity to establish institutions and to litigate. The reforms usually proposed are to put the safeguards on a statutory footing, and to give the Commissioner the civil-court powers of inquiry and the action-taken memorandum that the National Commission for Minorities has.