Constitutional Guarantees to Linguistic Minorities

Why it matters. It is the authority that SCRIPT is a distinct protected thing, and that compulsory affiliation carries with it an obligation on the university to accommodate the institution it has affiliated.

Article 29(2): admission

The text. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Facts. The State of Bombay v. Bombay Education Society, AIR 1954 SC 561, 1955 SCR 568, decided 26 May 1954 by Das J with Mahajan CJ, Ghulam Hasan, Bhagwati and Jagannadhadas JJ. A circular of the Government of Bombay prohibited schools maintained or aided by the State and using English as the medium from admitting any pupil other than one belonging to a community whose language is English, that is, Anglo-Indians and citizens of non-Asiatic descent. Parents and school societies challenged it.

Held. The circular was unconstitutional. Denying admission to a pupil whose mother tongue is not English is a denial on the ground of language, which article 29(2) forbids in a State-maintained or aided institution. The order would also compel Anglo-Indian schools to breach their obligation under the second proviso to article 337 and so forfeit their right to the special grants. On either view it could not stand.

Why it matters. It is the first and clearest authority that article 29(2) reaches a language-based exclusion, and it is an individual citizen's right, not a group's.

And note the tension it creates with article 30(1), which is reconciled in the way set out in [Articles 29 and 30: The Minority's Educational Rights].

Article 30: establishing and administering

The three clauses are set out in the religion chapter and are not repeated. What matters for language is that article 30(1) says "all minorities, whether based on religion or LANGUAGE", so a linguistic minority holds exactly the same right as a religious one, and the same case law applies.

The unit is the STATE. T.M.A. Pai Foundation v. State of Karnataka held it, and the reasoning is specifically linguistic: India is divided into linguistic States carved out on the language of the majority in each, so a linguistic minority can only be identified in relation to a particular State; and since article 30(1) puts religious and linguistic minorities on a par, the same unit serves both.

The consequence is the one students find counter-intuitive. Marathi speakers are a linguistic minority in Karnataka and hold article 30 rights there, however large the community is nationally.

Articles 350, 350A and 350B

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 a State in any of the languages used in the Union or in the State, as the case may be.

Note that it says every PERSON, not every citizen, and that the language need only be one "used in" the Union or the State, which is wider than an official language.

Article 350A, inserted by the Seventh Amendment in 1956. 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.

Two limits are on its face. It is an "endeavour", so it does not create an enforceable right to a school; and it is confined to the PRIMARY stage.

And one thing it is NOT. It is not a power to compel. In State of Karnataka v. Associated Management of Primary and Secondary Schools the Constitution Bench held expressly that article 350A cannot be read as empowering a State to compel a linguistic minority to choose its mother tongue as the only medium in a school it has established, because that would violate article 30(1). The case is worked in [The Medium of Instruction].

Article 350B, inserted by the same amendment. There shall be a Special Officer for Linguistic Minorities appointed by the President, whose duty it shall be to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution and to report to the President upon those matters at such intervals as the President may direct; the President shall cause all such reports to be laid before each House of Parliament and sent to the Governments of the States concerned.

Article 347. Presidential recognition of a language desired by a substantial proportion of a State's population, set out in [The Official Language of the Union].

The honest assessment

The educational guarantees are strong and enforceable. Articles 29(2) and 30(1) are fundamental rights, and the cases above show them being enforced against universities and State governments.

The Part XVII guarantees are weak. Article 350A is an endeavour; article 350B produces reports; article 347 depends on a Presidential direction that is rarely sought. None of them creates a claim a person can bring.

So the practical position is this. A linguistic minority that can establish its own school is well protected; one that depends on the State to provide instruction in its language is protected by an endeavour. That distributes the guarantee according to the resources of the community, which is the criticism to state and the subject of [Enforcing Language Rights].

A worked example

A Tamil-speaking family in Gujarat wants four things.

Their daughter admitted to a State-aided Gujarati-medium school. Article 29(2): she cannot be denied admission on the ground of language.

A Tamil-medium primary class in the district. Article 350A: an endeavour on the State and the local authority, and the President may direct. No enforceable right to the class.

A Tamil school of their own. Article 30(1): they are a linguistic minority in Gujarat, whatever the position in Tamil Nadu, and they may establish and administer it; article 30(2) forbids discrimination against it in the grant of aid.

To petition the Collector in Tamil. Article 350 gives the right if Tamil is a language used in the Union, which it is.

And if nothing happens about the primary class? The Special Officer under article 350B may investigate and report. That is the remedy, and it is a report.

What this does NOT mean

It does not mean article 29(1) is only for minorities. It protects any section of citizens with a distinct language, script or culture.

It does not mean article 350A gives a right to a school in one's own language. It is an endeavour, confined to the primary stage.

And it does not mean a minority school is unregulated. St. Xavier's and T.M.A. Pai apply to a linguistic minority's institution exactly as to a religious one.

Quick revision

Six provisions. Article 29(1): any section of citizens with a distinct language, SCRIPT or culture may conserve it; not confined to minorities; D.A.V. College protects the script and holds that compulsory affiliation obliges the university to accommodate. Article 29(2): no denial of admission to a State-maintained or aided institution on grounds only of language; Bombay Education Society. Article 30(1), (1A) and (2): a linguistic minority has the same rights as a religious one; the unit is the STATE, T.M.A. Pai. Article 347: Presidential recognition within a State. Article 350: every PERSON may petition in any language used in the Union or the State. Article 350A, Seventh Amendment 1956: an ENDEAVOUR to provide primary instruction in the mother tongue, with a Presidential power to direct; it is not a power to compel. Article 350B: a Special Officer who investigates and reports to the President, whose reports are laid before Parliament.

Test yourself

1. Name the six provisions and what each does. Article 29(1), conserving a distinct language, script or culture; article 29(2), no denial of admission on the ground of language; article 30, establishing and administering institutions; article 347, Presidential recognition of a language within a State; article 350, petitioning in one's own language; and articles 350A and 350B, primary instruction in the mother tongue and the Special Officer.

2. What did D.A.V. College decide, and which right did it protect? That circulars of Punjabi University making Punjabi the sole medium of instruction and examination in compulsorily affiliated colleges were ultra vires and unconstitutional, because a university that has compulsorily affiliated a college must allow it to administer itself, teach in its own medium and examine in its own SCRIPT. It protected the right to conserve a script under article 29(1) with article 30(1).

3. Why is Bombay Education Society important? Because it held that refusing admission to a State-aided English-medium school to a pupil whose mother tongue is not English is a denial on the ground of language contrary to article 29(2), which is an individual citizen's right subject to no exception.

4. State the two limits written into article 350A and the third the courts have added. It is an endeavour rather than a duty, so it creates no enforceable right; it is confined to the primary stage; and, on the Associated Management case, it cannot be read as empowering the State to compel a linguistic minority to adopt its mother tongue as the only medium.

5. Give the honest assessment of these guarantees. That the educational guarantees in articles 29(2) and 30 are fundamental rights and are enforced, while the Part XVII guarantees are an endeavour, a reporting officer and a rarely sought Presidential direction. The protection is therefore strongest for a community able to establish its own institutions and weakest for one that must depend on the State.