Language and Religion in a Plural State

The Eighth Schedule lists the languages, twenty two at present.

Ireland, Article 8. Irish, as the national language, is the first official language; English is recognised as a second official language; and provision may be made by law for the exclusive use of either for any one or more official purposes.

Germany, the United Kingdom, the United States. No constitutional official-language provision. The United States has none at federal level at all, and English is not the official language of the United States by any constitutional text.

Religion, system by system

India: articles 25 to 28 with secularism. Freedom of conscience and the right freely to profess, practise and propagate religion under article 25, subject to public order, morality and health and to the other Part III rights, and subject to the State's power to regulate secular activity and to provide for social welfare and reform and for throwing open Hindu religious institutions of a public character to all classes. Article 26 gives religious denominations the right to manage their own affairs in matters of religion. Article 27 forbids compelling payment of taxes for the promotion of a religion. Article 28 restricts religious instruction in State-funded institutions. Secularism was inserted into the Preamble in 1976 and held a basic feature in S.R. Bommai v. Union of India, (1994) 3 SCC 1.

United States: the First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Two clauses, in tension with each other, and neither uses the word secular.

Ireland: Article 44. Article 44.2.1 guarantees freedom of conscience and the free profession and practice of religion, subject to public order and morality. Article 44.2.2 provides that the State guarantees not to endow any religion. The special position of the Catholic Church, formerly in Article 44.1.2, was removed by the Fifth Amendment in 1972.

Switzerland: article 15. Freedom of religion and conscience, including the right to choose a religion and to join or belong to a religious community; and article 72 leaves the regulation of the relationship between church and state to the cantons.

Germany: article 4 guarantees freedom of faith and conscience; article 140 incorporates named articles of the Weimar Constitution on religious societies, so Germany has no established church and a system of co-operation with recognised religious communities.

United Kingdom. The Church of England is established, with bishops sitting in the House of Lords, and the monarch is its Supreme Governor.

A worked example

A State wishes to make its own language the sole medium of instruction in all schools including minority schools.

India. Article 350A requires facilities for instruction in the mother tongue at the primary stage for linguistic minorities. Article 29(1) protects the right of any section of citizens having a distinct language, script or culture to conserve it. Article 30(1) gives linguistic and religious minorities the right to establish and administer educational institutions of their choice.

Canada. Section 23 confers minority language educational rights on citizens whose first language learned is that of the English or French minority in the province, and section 23(3) requires instruction in minority language educational facilities where numbers warrant.

Switzerland. Article 70(2) requires the cantons to respect the traditional territorial distribution of languages and the indigenous linguistic minorities.

The cases

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose out of proclamations under article 356 following the events of December 1992, and required the Court to decide the constitutional status of secularism.

Held, by nine judges. Secularism is a basic feature of the Constitution; a State government which acts against secularism acts contrary to the Constitution, and a proclamation on that ground is justiciable on the material before the President.

Why it matters here. It gives a Preamble word operative force and is the leading authority on the Indian constitutional position on religion.

Facts. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, concerned the Madras Hindu Religious and Charitable Endowments Act 1951 and the extent to which the State could regulate the administration of a mutt.

Held, by the Supreme Court. What constitutes the essential part of a religion is to be ascertained with reference to the doctrines of that religion itself; matters of religion under article 26(b) include practices regarded by the community as part of its religion, and the State may regulate the secular administration of property under article 26(d) but not the essentially religious.

Why it matters here. It is the origin of the essential religious practices doctrine, which is the Indian technique for separating the religious from the regulable and has no counterpart in the American establishment jurisprudence.

Distinctions

What beginners get wrong

"Hindi is the national language of India." Article 343 makes Hindi in the Devanagari script the official language of the Union. The Constitution nowhere uses the phrase national language.

"English ceased to be an official language in 1965." Article 343(2) provided for fifteen years, and article 343(3) permitted Parliament to provide for its continued use, which it did by the Official Languages Act 1963.

"Secularism means the same thing everywhere." The American version is a wall of separation reasoning from the establishment clause; the Indian version permits the State to regulate secular activity associated with religion under article 25(2) and to reform religious institutions; the British version has an established church.

Limits and criticism

The Indian language settlement was a political compromise and article 351's direction to promote Hindi sits uneasily beside article 29(1)'s protection of distinct languages.

The essential religious practices doctrine requires courts to decide theology, which is the standing criticism of Shirur Mutt.

Bilingualism is expensive and incomplete. Canada's sections 16 to 23 apply fully to federal institutions and to New Brunswick, and only partly elsewhere.

Quick revision

1. India: article 343 Hindi as official language with English continued by the 1963 Act; articles 345 to 347 State languages; article 348 courts and legislation; article 350A mother-tongue instruction; article 350B Special Officer; article 351 promotion of Hindi; Eighth Schedule.
2. Switzerland: article 4 four national languages; article 70 official languages and cantonal choice.
3. Canada: section 133 of the 1867 Act; sections 16 to 23 of the 1982 Act, including section 23 minority language education.
4. Ireland: Article 8, Irish first official language.
5. India on religion: articles 25 to 28; secularism a basic feature per S.R. Bommai.
6. United States: the First Amendment's establishment and free exercise clauses.
7. Shirur Mutt, AIR 1954 SC 282: essential religious practices ascertained from the doctrines of the religion itself.

Test yourself

1. Set out the Indian official language provisions. Article 343 makes Hindi in the Devanagari script the official language of the Union, with English continuing for fifteen years and thereafter as Parliament provides, which it did in the Official Languages Act 1963. Articles 345 to 347 permit a State to adopt its own official language and the President to recognise a language spoken by a substantial proportion of a State's population. Article 348 makes English the language of the higher courts and of legislation, subject to Parliament and to article 348(2). Article 350A requires mother-tongue instruction at the primary stage for linguistic minorities and article 350B provides a Special Officer. Article 351 directs the Union to promote Hindi.

2. Compare the Canadian and Swiss techniques for multilingualism. Canada declares English and French the official languages of Canada with equality of status under section 16, provides for their use in Parliament, the courts and federal institutions in sections 17 to 20, and confers individual minority language educational rights in section 23. Switzerland recognises four national languages in article 4, makes three official at federal level with Romansh official for dealings with Romansh speakers under article 70, and leaves each canton to determine its own official languages while respecting the traditional territorial distribution.

3. How does Indian secularism differ from American? The American First Amendment forbids Congress to make any law respecting an establishment of religion or prohibiting the free exercise thereof, which has been read as separation. Indian secularism permits the State to regulate the secular activity associated with religious practice and to provide for social welfare and reform and for throwing open Hindu religious institutions to all classes under article 25(2), so the State engages with religion rather than withdrawing from it, and secularism was held a basic feature in S.R. Bommai v. Union of India, (1994) 3 SCC 1.

4. What is the essential religious practices doctrine and where does it come from? It is the rule that constitutional protection attaches to what is essential to a religion, ascertained with reference to the doctrines of that religion itself, so that the State may regulate the secular administration of religious property without infringing article 26. It comes from The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, and it has been criticised for requiring courts to decide questions of theology.