The Law Blog

_{Harshita Jindal and Aashi Sharma are  second year law students at Rajiv Gandhi National University of Law, Punjab.}

The Bombay High Court in Karachi Education Society v. State of Maharashtra and Ors., recently, quashed an order passed by the Director of Education of Pune for exempting linguistic minority institutions from the ambit of the Maharashtra Educational Institutions Act. This is representative of the struggle of linguistic minority communities across India who are unable to uplift themselves owing to non-application of certain prominent legislations to them. This article aims at answering one of such legislative fallacies evident in the National Commission of Linguistic Minority Institutions Act, 2004.

According to the census of 2011, there are 1,369 ‘rationalised’ mother tongues out of which 400 are facing the threat of extinction. Keeping these concerns in mind, the framers of the constitution incorporated Articles 29 and 30. The latter grants religious and linguistic minorities the right to safeguard their language by establishing and administering educational institutions of their choice.

Jurisprudential ambiguity around the term

The term ‘minority’ has not been defined anywhere in the constitution but existing judicial precedents shed some clarity on the term ‘linguistic minority’. The foundational explanation of this term was given by the Supreme Court in DAV College v. State of Punjab 1971. It was held that the presence of a distinct spoken language amongst a group, thereby necessitating a separate linguistic identity, characterises them as a linguistic minority. Minority groups have an inherent right to set up and manage educational facilities according to their preferences, which includes choosing the medium of instruction. This understanding arises from a conjunctive reading of Articles 30(1) and 29(1).

Moreover, an eleven-judge bench in TMA Pai Foundation and Ors v. UOI decided on the criterion for the determination of linguistic minority. The apex court affirmed that linguistic minority has to be determined in the context of the state and not India as a whole. The Hon’ble Supreme Court in re Kerala Education Bill, 1959 decided that those communities with less than 50% of the population of the particular state and have their mother tongue other than the State Official Language are a Linguistic Minority. For instance, In the State of Maharashtra, Marathi is recognized as the Official Language. Consequently, individuals whose mother tongue is any language other than Marathi, and whose community constitutes less than 50% of the population, are considered Linguistic Minorities in Maharashtra. This includes speakers of languages such as Urdu, English, Punjabi, Gujarati, Sindhi, Kannada, Malayalam, Telugu, Bengali, Rajasthani, and others are guarded under Article 30 (1). These judgements have tried to fuel clarity into the term, which was left open to elucidation by the Constituent Assembly.

On the basis of these judicial precedents, a criteria was mapped out in the Report of the National Commission for Religious and Linguistic Minorities, which emphasised on numerical inferiority, non-dominant status, and distinct identity. The report states that “exclusive adherence to a minority language is a leading factor that contributes to socio-economic backwardness, and that this backwardness can be addressed only by teaching the majority language”. But a workshop conducted by the National Commission for Religious and Linguistic Minorities (NCLRM) in 2006 recommended a clear definition of the term “linguistic minority”  which would be applied when creating legislation to implement affirmative action. It stated that the criteria should not circle around the fact that a linguistic minority group should lack knowledge of the majority language, but on the susceptibility of a specific language to disappearing and the absence of institutional backing to nurture, maintain, and promote that language.

Plight of the linguistic minorities

The National Commission for Minority Educational Institutions (NCMEI) was created under the National Commission for Minority Educational Institutions Act, 2004 (NCMEI Act) to define measures for promoting and safeguarding the minority status and identity of institutions established by minority groups, address inquiries regarding the designation of an institution as a minority educational institution, and protect that designation.

It seems that while the NCMEI Act does not explicitly differentiate between linguistic and religious minorities, the NCMEI is currently not accepting applications—either directly or through appeals against state minority commission decisions—for minority status certificates for linguistic minorities. Although the  Act does not specifically prohibit linguistic minorities from applying, Section 2(f) defines “minority” as a community recognized as such by the Central Government. To date, the Central Government has only recognized six religious minorities and has not acknowledged any linguistic minorities. Additionally, the National Commission of Minorities Act, 1992 also defines ‘minorities’ as a community notified by the central government. Hence, the power and authority to declare a community as minority completely falls into the purview of the central government. So far, the union government has only notified six religious minority communities i.e. Muslim, Christian, Sikh, Buddhist, Parsi and Jain.

This statutory recognition to these six minority communities stems from the Ministry of Human Resource Development’s notification dated 23 March 2018. The latter categorically reserved the minority status for the above-stated six religious minority communities, thereby leaving the question open in case of linguistic minorities. Therefore, issuing minority certificate, under the NCMEI Act, 2004, to linguistic minorities does not arise.

The fact that there is not even a single notification of a linguistic minority by the central government bolsters the NCMEI’s blatant neglect towards linguistic minorities. Time and again, the NCMEI has reiterated its stance of being a regulatory body entirely for religious minorities and not catering to the interests of linguistic minorities. A document published by the NCMEI titled Guidelines for determination of minority Status and related matters in respect of minority educational institutions, available on NCMEI’s website explicitly states that ‘The Commission does not entertain applications for linguistic minority’.

Reportedly, this position taken by the NCMEI has created difficulties for many linguistic minority institutions across various states. For instance, Moreh College in Manipur was established in May 1992 with an objective to provide higher education to minority communities, particularly, the Gangte-Lepcha community in Chikim village, Manipur. Despite over 30 years of establishment and recognition by the UGC, the college is yet to be recognized as a minority institution, owing to this legislative fallacy.

These institutions have faced significant delays in processing their applications for minority status by state authorities. Some institutions have sought relief from the relevant courts to address this long-standing issue. However, the future of linguistic minority institutions that have applied for minority status but have not received it, or those that have not had their provisional status renewed, remains uncertain until a final decision is made by the appropriate authorities. In conclusion, the lack of recognition and support for linguistic minorities hinders their educational institutions, highlighting the urgent need for legal clarity and protective measures to preserve linguistic diversity in India.

This contradicting nature of the legislative dictum and the constitution creates a conundrum for any linguistic minority community. This is because linguistic minorities are at a loss of judicial precedents as well as legislative action bolstering the exercise of their rights guaranteed by the constitution. In K.P. Gopalakrishna v. State of Karnataka, it was held that in the absence of any notification by the Central government indicating the linguistic minorities, it would be inexplicable as to how the commission would adjudicate as to the linguistic minority status of any applicant.

Conclusion and remedies

In the context of the prevailing neglect and uncertainty concerning linguistic minorities, it is imperative to ensure their protection through judicial activism and robust legislative measures. To date, significant precedents have been established that clarify the rights of religious minorities, particularly regarding their entitlement to establish and administer educational institutions. The landmark ruling by the nine-judge bench in the TMA Pai Foundation case affirmed the equal standing of linguistic and religious minorities. However, there remains an absence of jurisprudential authority aimed at creating a protective framework specifically for linguistic minorities. Therefore, this necessitates the filing of a Public Interest Litigation before the apex court since this would enable justice to aggrieved linguistic minority communities across the country.

A critical initial step toward the inclusion of various linguistic minority communities across India involves amending the definitions of minorities as outlined in the National Commission for Minorities (NCM) Act of 1992 and the National Commission for Minority Educational Institutions (NCMEI) Act of 2004. It is essential to consider the establishment of distinct criteria for identifying religious and linguistic minorities, given that there are six recognized religious minority communities, while linguistic minorities are determined based on the state as a unit of analysis.

Furthermore, the NCMEI Act of 2004 is explicitly limited to the rights of religious minorities. Consequently, the legislature faces the dual responsibility of either enacting new legislation specifically addressing the rights of linguistic minorities or expanding the scope of the NCMEI Act to include linguistic considerations. A more prudent approach would be to pursue the enactment of new legislation dedicated to the rights of linguistic minorities, as the current phrasing of the NCMEI Act has proven to be exclusive and insufficiently accommodating of linguistic minority concerns.

This step towards the inclusion and recognition of linguistic minority communities will go a long way. By recognizing and supporting the rights of linguistic minorities, India can move closer to realizing the promise of equality and opportunity for all, ensuring that no group is left behind in the pursuit of educational excellence and social progress.