December 25, 2020
The Jammu and Kashmir Official Languages Bill, 2020, was passed by parliament in the recently concluded monsoon session. The Act received the assent of the President on September 26, 2020. The law allows for the inclusion of Kashmiri, Dogri and Hindi, in addition to Urdu and English, in the list of official languages in the Union Territory (UT). The bill was introduced and passed by the parliament during the boycott by the opposition concerning the passing of the three farm bills.
The only opposition to the bill in the Lok Sabha was put forth by Hasnain Masoodi, a former judge of the High Court of Jammu and Kashmir and a politician of the National Conference. He was the author of a judgment in 2015 declaring Article 370 a “permanent provision of the Constitution” which could not be “abrogated, repealed or even amended”. His argument against the law was threefold: firstly, giving a historical background of the languages used in the State, he argued that Urdu has been in force since 1889 when it was originally introduced by Maharaja Pratap Singh. Further, it was re-confirmed in 1957 and Article 145 of the Constitution of Jammu and Kashmir, 1956 stated that the official language shall be Urdu and English was to be used for official purposes of the State. Secondly, the Bill was being introduced through the Jammu and Kashmir Reorganisation Act, 2019 (hereinafter “Reorganisation Act”) which had been challenged in the Supreme Court (He is one of the petitioners challenging the Act) and was past the stage of formal admission. Mr. Massodi contended that even an introduction of this Bill will be an affront to the separation of powers and therefore, against constitutional propriety. Thirdly, he questioned the necessity of such a law at the time and that no other State or UT has five working official languages. Since the law was being passed under the emergency powers of the Reorganisation Act, he claimed that the Act was a “constitutionally suspect law” which is already under “judicial scrutiny”. He also raised an issue that since there will be five languages for the whole Union Territory there will be confusion in the bureaucracy.
The law was introduced by The Minister of State in The Ministry of Home Affairs, Shri G. Kishan Reddy standing in for the Home Minister. In his reply, he cited the Census of 2011 to explain the demography of the UT and the necessity of such a law. He gave the example of the Union Territory of Puducherry which has five official languages (French, Tamil, Telugu, Malayalam, and English) as an equivalent. On legislative competency, he cited Section 73 of the Reorganisation Act and Order S.O. number 3937(E), dated the 31st October 2019 issued by the President which is presently in force in the Union Territory of Jammu and Kashmir – paragraph 4 of this promulgation states that the powers of the Legislative Assembly can be exercised by the Parliament.
Legislative Competency
The original power to adopt an official language rests with the Legislative Assembly of Jammu and Kashmir under Section 47 of the Reorganisation Act. In the present case, the essence of the power assumed by the Parliament comes from Section 73 of the Reorganisation Act. Under this section, titled “Provision in case of failure of constitutional machinery”, the President can suspend the operation of all or any of the provisions of the Act to “make such incidental and consequential provision” for “administering the Union territory of Jammu and Kashmir”. This was dutifully done by the Order of 31st October 2019, and the legislative powers were transferred to the Parliament along with the suspension of most of the Act, including Section 47. Therefore, the parliament assumed the formal power to adopt an official language for the Union Territory.
However, every other state and Union Territory with a legislature is given the power to select an official language, even if the language is not included in the VIII Schedule. Article 345 of the Indian Constitution allows the State legislature to adopt any language and Section 34 of the Government of Union Territories Act, 1963, empowers the Legislative Assembly of the Union territory to adopt any one or more of the languages in use in the Union territory.
Similarly Placed Union Territories
Only three Union Territories elect their representatives to form a legislature – Puducherry, Delhi and now, Jammu and Kashmir.
Section 34 of The Government of National Capital Territory of Delhi Act, 1991 provides the Legislative Assembly of the Capital with the power to adopt one or more official languages. The Assembly enacted The Delhi Official Languages Act, 2000 which made Hindi in Devnagri script as the official language and English was to continue as the administrative and legislative language. Additionally, Punjabi and Urdu were adopted as the Second Official Language.
Similarly, Section 34 of the Government of Union Territory Act, 1963 allows the Legislative Assembly of a Union Territory to adopt the official languages. A proviso to this provision allows the French language to continue as an official language for Pondicherry unless expressly removed by the Assembly, making it the only place in India to have two European official languages. Through Section 3 of The Pondicherry Official Language Act 1965, the Legislative Assembly made Tamil, Telegu, and Malayalam as the official languages with English as an additional official language but did not remove French. A writ in the nature of a Public Interest Litigation was filed at the Madras High Court by an art and literary organisation to implement Section 3 of the Pondicherry Official Language Act, 1965. In its counter-affidavit, the UT explained the “four language formula”. The three regional languages were applicable in “four enclaves situated far away from one another” and the English language “continues to be the link language” among all officers. The use of the Tamil language was in Puducherry and Karaikkal, Malayalam in Mahe and Telugu in Yanam. The High Court refused to change this system owing to the “peculiarity” of the Union Territory of Puducherry. Therefore, even though the UT is smaller in the area compared to Jammu and Kashmir, there are specific languages for specific areas only and no one regional language is enforced in the whole UT. Most importantly, these decisions were taken by an elected legislature.
Conclusion
At different points in time, in different circumstances, India has been quoted to be a melting pot of diversity, recently by Justice Chandrachud in the hearing of the Sudarshan TV case and the Chief Justice SA Bobde at the International Judicial Conference earlier this year. To be truly respectful of this diversity, it is in the interest of the people that decisions like selecting an official language are taken by their elected representative. There is a chance that too many languages might create a situation of confusion but it would be a speculation to say so at this point. An inadvertent result of imposing so many languages would be a situation of linguistic polarisation where every section of the population will raise demands for the inclusion of their language. Undertones of this were seen in the Parliament during the discussion of this Bill, over the exclusion of Punjabi along with Gurjari and Pahari, as official languages by various political parties. Every State and Union Territory is given the power to choose the language that they want to work in and it should be best left to them. Using emergency powers to implement administrative decisions which ideally an elected State Legislature should take is a clear example of an authoritative Central Government and against the ethos of cooperative federalism.
(Varun Ahuja is a 3rd year law student of Vivekananda Institute of Professional Studies, Delhi)
