MUHAMMAD KOWKAB IQBAL Versus GOVERNMENT OF PAKISTAN through Secretary Cabinet Division, Islamabad

ORDER

JAWWAD S. KHAWAJA, C.J. ---These two Constitution Petitions filed under Article 184(3) of the Constitution of Pakistan have raised an issue which has a direct nexus with the life of every common man and woman living in Pakistan. Mr. Muhammad Kowkab Iqbal, petitioner in Constitution Petition No. 56 of 2003 and Syed Mahmood Akhtar Naqvi, petitioner in Constitution Petition No. 112 of 2012, have prayed for the implementation of Article 251 of the Constitution, which commands the state to adopt Urdu as the official language of the country and also stipulates that steps may be taken by the provinces for the promotion of provincial languages. Since both Constitution Petitions have sought similar relief, the same were heard together.

2. As the matter revolves around Article 251 of the Constitution, for ease of reference, it is reproduced as under:

National Language 251. (1) The National language of Pakistan is Urdu, and arrangements shall be made for its being used for official and other purposes within fifteen years from the commencing day.

(2) Subject to clause (1), the English language may be used for official purposes until arrangements are made for its replacement by Urdu.

(3) Without prejudice to the status of the National language, a Provincial Assembly may by law prescribe measures for the teaching, promotion and use of a provincial language in addition to the national language.

(emphasis supplied)

3. The petitioner, Mr. Kowkab Iqbal, submitted that the State and the Government are deliberately not implementing Article 251 of the Constitution and on account of the non-implementation of this provision a societal and linguistic divide has been created in society. It was further argued that this constitutional provision was to be implemented within 15 years of the date of coming into effect of the Constitution. The said period expired in the year 1988 and while 27 years have elapsed since then the said mandatory provision has still not been implemented. Similar submissions were made by the other petitioner, Syed Mehmood Akhtar Naqvi.

4. At this juncture, we may highlight the constitutional significance of the issue raised in these petitions which seems to be lost on the respondent. The importance of our national language has been stressed upon in various judgments of this Court. In one of our recent judgments, District Bar Association, Rawalpindi v. Federation of Pakistan (Constitution Petition No. 12 of 2010 etc.), wherein the 18th and 21st Constitutional Amendments were challenged, it was observed that:

5. Indeed the importance of this issue cannot be emphasized enough. Yet, the way in which this issue is being dealt with by the Government has been very casual and non serious.

6. During the course of this year alone, these petitions have come up for hearing before this Court eighteen times. However, despite the time the Court dedicated to this crucial issue, no substantial progress was made. On 12-5-2015, for instance, Mr. Abdul Rashid Awan, DAG for the Federation, clearly submitted that in spite of his best efforts the Secretary Cabinet and the Secretary Information, Government of Pakistan, and other concerned functionaries were not paying any heed to the Constitutional imperative in Article 251. Although, reports were filed in Court thereafter, with regret we say that these reports were not satisfactory and no substantial action has been taken by the concerned authorities for the implementation of Article 251 of the Constitution. The same is the situation till now.

7. Almost all orders of the Court in the present case portray this dismal situation and lack of interest by the concerned functionaries in implementing the command of Article 251 of the Constitution. The following synopsis of only some of the Court orders over the last seven months will demonstrate this:

S #

Order dated

Synopsis of Court order and related submissions

1

22-10-2015

Mr. Abdul Rasheed Awan, learned DAG, requested for some time to submit a concise statement.

2

10-4-2015

The learned law officer was unable to give any satisfactory reply why the breach of Article 251 had not been rectified yet. In order to ascertain causes of delay he once again requested for some time.

3

23-4-2015

Learned law officer sought time to file a more comprehensive statement.

4

30-4-2015

Learned law officer once again sought time to file concise statement.

5

12-5-2015

Learned law officer stated that despite his best efforts the Secretary Cabinet and the Secretary Information, Government of Pakistan, and other concerned functionaries were not paying heed to the matter and to the orders of this Court.

6

13-5-2015

Learned Attorney General appeared and assured that if some time is given to the Government then solid suggestions shall be presented for implementation of Article 251 of the Constitution.

7

20-5-2015

The Court observed that attitude of Federal Govt. was non-serious. Learned DAG sought time to file his report. Rs.10,000 costs were also imposed on the Federal Govt.

8

2-6-2015

Despite orders, the Federal Government was unable to explain what steps had been taken over the last 42 years for implementation of Article 251 and who was responsible for such omission.

9

5-6-2015

It was observed that Punjabi language was not being given its place by the Government of the Punjab and no substantial steps had been taken for this purpose although in the other Provinces concrete steps had been taken.

10

11-6-2015

Secretary Information stated that summary with suggestions had been sent to Secretary Cabinet for implementation of Article 251.

Assistant Advocate General Punjab requested for some time to file report.

11

2-7-2015

Decision of Cabinet awaited; Case was adjourned.

12

10-7-2015

Cabinet decision still pending as Prime Minister is out of country.

13

11-8-2015

Secy. Information informed the Court that vide letter dated 6-7-2015 certain directions have been issued by the Govt. Mr. Sikandar Javed, Chairman GEC informed the Court that the Law Ministry was neither taking any interest in the legal dictionary made by them to facilitate Urdu translation of laws nor was it rendering any financial assistance.

14

18-8-2015

Court still not informed of satisfactory arrangements by the Government.

8. This record shows that other than words, no progress has been made for implementation of Article 251 of the Constitution. The Government appears to be acting on the untenable premise that it has the right not to adhere to Article 251 of the Constitution. This is most disturbing. The language of Article 251 leaves no room for such an interpretation. Article 251 uses the term shall , which shows that it is a mandatory provision and not an optional or directory one. Defiance of Article 251 should not be allowed.

9. Here we may advert to Article 5 of the Constitution which stipulates that ...obedience to the Constitution and law is the inviolable obligation of every citizen ... . It also needs to be emphasized that all senior functionaries of the State take an oath to preserve protect and defend the Constitution . State functionaries in positions of authority therefore, cannot give short shrift to the Constitution which they are bound to preserve, protect and obey. On various occasions we have pointed out that the rule of law begins with the powerful; if the Government itself does not follow the commands of the Constitution then it cannot legitimately exercise authority to enforce the law on the general public.

10. In the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 876 at 1242) this Court has remarked that it would ... be for the representatives of the people and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today. The lack of interest shown by the Government to the constitutional command contained in Article 251 directly feeds into the lawlessness that prevails in our society . Here it may be useful for us to take guidance from a famous incident involving Baba Farid Ganj Shakar.

11. A mother brought her child to Baba Sahib with a complaint that her son was eating too much shakar and should be cautioned against this habit. Baba Sahib asked that lady to bring the child again after one week. When she brought her son again, Baba Sahib forbade the child and he obeyed. The woman asked Baba Sahib why he did not just forbid the child when she had visited last. Baba Sahib replied that at that time he himself was copiously consuming shakar and therefore, could not have asked the child to abstain. This wisdom seems to be lost on those in Government.

12. What is also lost on the Government is that Article 251 is not a stand-alone provision; this provision is directly linked to the realization of various fundamental rights protected by the Constitution, especially the right to dignity (Article 14), the right to equal treatment under the law (Article 25), and the right to education (Article 25A). It is a corollary of a person s right to dignity enshrined in the Constitution that his or her language (national or provincial) should be respected and recognized by the State which exercises authority over him or her. Likewise, it is a corollary of a person s right to equality that he or she must not be denied access to economic and political opportunities because he or she is only conversant in the languages recognized and referred to in Article 251 and not conversant with the English language. When the state refuses to recognize this it denies to its citizens equality of status and opportunity and also their dignity in a very real sense.

13. There is also no doubt that the right to education has a direct link with language. Article 25A of the Constitution states that the State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law. Empirical studies throughout the world (including those by UNESCO) advocate the use of a child s native language in instruction since this is the language the child grows up with and which is in use in his home and around him. But the Government seems to be ignoring this important issue.

14. We may also note here that it is not as if the Government lacks the imagination or expertise to conceive ways in which Article 251 may be implemented. For instance, even in 1981 certain recommendations were made by the National Language Authority, (presently renamed as National Language Promotion Department vide Notification dated 17-8-2012), for implementation of Article 251. The same are reproduced herein below:

Various other committees have been formed and recommendations submitted from time to time. What is lacking therefore is not imagination or expertise, but the will to preserve, protect, defend and obey the Constitution.

15. Even as these petitions were being heard, vide letter No.1/Prog/2015 dated 6-7-2015 issued by Government of Pakistan, Cabinet Secretariat, the Cabinet Division directed that certain short term measures be taken by all Ministries and Divisions. The letter for ease of reference is being reproduced as under:

It remains to be seen to what extent these directions will be followed.

16. We may also emphasize here that implementing Article 251 is not just a matter of obeying the Constitution: it has real practical implications for the Pakistani public. In this regard, we may refer to a highly relevant historical fact. In 1972, the provincial government in Balochistan led by the Chief Minister and the provincial government in North West Frontier Province (now KPK) led by the Chief Minister Maulana Mufti Mahmud took some concrete steps towards introducing Urdu as the official language in their respective Provinces. A note by a former Chief Secretary of NWFP (now KPK) highlights the fact that as a result, available human and financial resources of both provincial governments were optimized. Again in 2004, the government in KPK introduced the National language for official and other purposes. In addition, the use of Urdu as the official language augmented the self-esteem of civil servants employed by the two Governments. At that time, it was immediately noticed that this measure remarkably improved the efficiency of the concerned provincial governments: even an Assistant in BS-11 was able to initiate notings in Urdu which was a language he was educated and familiar with. The very same activity and perhaps with a lesser quality, is now being undertaken by a Section Officer in BS-17 (since official noting is required to be in the English language).

17. In the governance of the Federation and the Provinces there is hardly any necessity for the use of the colonial language which cannot be understood by the public at large. Even for many civil servants and public officials, who may have received education in English, this language would in most cases, not be the language most used by them. Many officials are therefore forced to spend time on attempting to initiate and take decisions in a language which they are not entirely comfortable with. The time thus spent is quite wasteful because a lot of energy is dedicated to deciphering the language of the noting (which could have been easily drafted in the Urdu language) itself rather than understanding its content or substance. This wasteful exercise at times results in absurd and farcical outcomes which would be wholly avoided by use of the National language.

18. It is not at all the object of this judgment to denigrate the importance of English as a language used in international commerce and other activities which require the use of that language. The point before us as noted above is very different. Article 5(2) of the Constitution commands that [o]bedience to the Constitution and law is the inviolable obligation of every citizen ... . We are tasked to both obey the Constitution and to enforce it, and we cannot shy away from our obligation to the same while the nation suffers even if some may (from habit or training) find it more convenient to continue using the colonial language.

19. Therefore, bearing in mind the constitutional commands in Articles 5 and 251 reproduced above and noting the inaction and failure of successive governments to implement this important provision, we have no option but to order as under:-

(i) the provisions of Article 251 shall be implemented with full force and without unnecessary delay by the Federal and Provincial Governments;

(ii) the time-lines (given in letter dated 6-7-2015 reproduced above) which are given by the Government itself must be considered for implementation by the Government in line with Article 251 for implementation;

(iii) the Federal Government as well as Provincial Governments should coordinate with each other for uniformity in the rasmulkhat for the National language;

(iv) Federal as well as provincial laws should be translated in the National languages within three months;

(v) statutory, regulatory and oversight bodies shall take steps to implement Article 251 without unnecessary delay and also ensure compliance by regulatees;

(vi) in the competitive examinations at Federal level the recommendations of government bodies noted above, should be considered by the Government for implementation without unnecessary delay;

(vii) Judgments in cases relating to public interest litigation and judgments enunciating a principle of law in terms of Article 189 must be translated in Urdu and should be published in line with Article 251 of the Constitution;

(viii) in Court cases government departments should make all reasonable efforts to submit their replies in Urdu to enable citizens to effectively enforce their legal rights;

(ix) if, subsequent to this judgment, any public bodies or public officials continue to violate the constitutional command contained in Article 251, citizens who suffer a tangible loss directly and foreseeably resulting from such violation shall be entitled to enforce any civil rights which may accrue to them on this account.

20. Copies of this Judgment shall be sent to all the Federal as well as Provincial Secretaries, who are to take immediate steps for enforcement of Article 251 in line with Article 5 of the Constitution. The concerned Federal and Provincial Secretaries shall submit reports showing compliance with the above orders. The first report of progress should be fixed in Court within three months.

Sd/

Jawwad S. Khawaja, C.J.

Sd/

Dost Muhammad Khan, J

Sd/-

Qazi Faez Isa, J

NOTE: To meet the requirement of Article 251 of the Constitution, the Urdu version of this judgment is also issued. In view of Article 251(3), the Provinces may issue translations in provincial languages.

Sd/

Jawwad S. Khawaja, C.J.

MWA/M-39/SC Order accordingly.