MUHAMMAD HASHIM KHAN KAKAR, ACJ. Since common questions of law and facts are involved in both the above mentioned petitions, as such, we propose to dispose of the same through this common judgment.
2. Besides seeking increase in the amount of annual grant in aid to Pashto, Hazargi, Balochi and Brahui academies ("academies in question"), directions to the elected bodies of the said academies to increase the number of members have also been sought.
3. Keeping in view the importance of issue in question, notices were issued to the Attorney General, Advocate General, Presidents of Pashto, Balochi, Brahui and Hazargi academies, who appeared and submitted their para-wise comments.
4. Perusal of the record shows that the academies in question have been established by the eminent members of academia in the year 1961, 1971 and 2022 respectively and were registered with Societies Registration Act, 1860 and Balochistan Charities Registration Regulation Authority.
Besides getting grant in aid from Provincial Government and Pakistan Academy of letters, state land was also provided to Pashto and Balochi academies for construction of building; however, the annual grant in aid/funds of the academies are not at par.
5. It is admitted feature of the case that the academies in question are endeavoring to the promotion of local languages, culture and history and are the only recognized literary institutions in the whole province. These organizations play a crucial role in safeguarding the unique linguistic and cultural identity of a particular community through various activities, such as language classes, cultural events, seminars, lectures etc., contribute to the transmission of cultural values, traditions and heritage to the future generation.
6. We have heard learned counsel for the parties and perused the record, which reveals that the bone of contention between the parties are regarding maximum number of memberships and provision of grant in aid. Before dilating upon the rival contentions of the parties, it would be relevant to state that as per Article 251 of the Constitution, Urdu is National language of Pakistan and it mandates that arrangement shall be made for its being used for official and other purposes within fifteen years from the commencing day of constitution. Similarly, the provincial assemblies were also required for introducing a law and taking measures for the teaching, promotion and use of provincial languages in addition to the National language and in this regard the Provincial Assembly of Balochistan also enacted Balochistan Introduction of Mother Languages as Compulsory Additional Subject at Primary Level Act, 2014.
7. It is also admitted feature of the case that neither has the Federal Government implemented Article 251 of the Constitution despite the lapse of about 35 years nor has the Provincial Government taken any concrete step to preserve and promote the regional languages and implementing the Act of 2014.
8. Undoubtedly, a mother tongue is the language which a child starts hearing after being born and it always helps in providing a definite shape to our emotions and thoughts. Right to education in mother tongue is the right of every child, however, unfortunately in our country the majority of students are taught in a language other than their mother tongue, which compromises their ability to learn effectively. Children have no access to education in a language they speak and understand. Balochi, Brahui, Pashto, Hazargi and Persian are neither medium of education nor taught in our schools and there is every possibility of its disappearance while taking away with it an entire culture and intellectual heritage. It is very unfortunate that we focus only on international languages and ignore the remaining two, i.e. mother and national languages, knowingly that the only way to save our regional languages is speaking, learning and writing them. Our regional languages are in danger and vulnerable to extinction, their survival require immediate attention because when a regional language dies, it also loses knowledge, heritage, culture, information and world view. It is by now an admitted tact among the social scientists that the idea of one nation and one language kills the diversity and mother languages. Unity does not mean uniformity and the unity of our country lies in its diversity.
9. Reverting to the main controversy regarding the number of memberships of the academies in question, which are non-profitable organizations; it would be advantageous to reproduce Article 28 of the Constitution, which speaks as under: "28. Preservation of language, script and culture. Subject to Article 251 any section of citizens having a distinct language, script of culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose."
10.The moot question, which requires determination is whether any provision or amendment in the manifesto of an organization, particularly one established for the preservation and promotion of language, closing its doors for new entrance/members can be declared ultra vires of the Constitution?. The answer is 'yes, because the Constitutions guarantees the right to association and freedom of expression and any amendment regarding restriction of new membership infringes upon such rights within the purview of afore-mentioned Article of the Constitution and could potentially be challenged as ultra vires the Constitution.
11. It is also worth mentioning that the academies were initially registered under the provisions of Societies Registration Act, 1860 and at the time of registration "Memorandum of Association" was also submitted which also does not provide any upper limits of membership. The amendments, whereby the number of members has been limited to 40, 60 or 100 while closing doors for new entry apparently violate fundamental rights. The societies established for the promotion of languages, science and fine arts, or for the diffusion of useful knowledge or for charitable purposes are of paramount importance, particularly within the frame work of Article 28 of the Constitution which recognizes and safeguards the right to the preservation of language and culture, acknowledging the significance of diversity and protection of minority rights. Such organizations typically aim to unite and protect the values, culture and heritage of a specific group as such; denying membership to the citizen from the same section is against the principles of diversity and inclusivity. It also leads to discrimination, whereas the Constitution emphasizes equal rights and protection against discrimination. Excluding members based on shared cultural identity also leads to fragmentation within the community and needless to observe that collaboration and shared responsibility could better serve the cause of language and cultural preservation.
12. It is case of the petitioner that all the citizens who prescribe the manifesto of the aforementioned academies and have some literary background are eligible to join said academies as members. It is also their case that they are entitled to be dealt with in-accordance with law. Admittedly, under Article 4 of the Constitution, it is the right of every citizen to enjoy the protection of law and to be treated in accordance with law. Similarly, under Article 25 of the Constitution, all citizens are equal before law and are entitled to equal protection of law. The impugned amendment made in the manifesto of Pashto Academy regarding limited membership seems to be made without any justification and it is by now settled that an action, which is mala fide or colorful, is not regarded as action in accordance with law. Similarly an action taken upon extraneous are irrelevant consideration is also not an action in accordance with law, as such, the same amendment whereby the door of the academy has been closed for new entries is liable to be struck down.
In view of the above, the impugned amendment made in Section 2(2) of Manifesto of Pashto Academy as well as sister academies, whereby the number of members has been limited to 40 to 100 are set aside, being made in violation of provisions of Societies Act, 1860 and fundamental rights guaranteed by the Constitution. All citizens belonging to the same communities having literary background, prescribing the manifesto and ready to pay the monthly fee and observing the discipline are eligible to be members of the said academies. If any application is filed, the same will be entertained by the President or General Secretory and membership card will be issued immediately without permission from any other body.
Before parting with the judgment in hand, it would be relevant to state that the copy of this judgment be sent to the Secretory, Education to consider the request of Pashto, Brahui and Hazargi academies for increase of grant in aid amount as well as provision of land to Brahui Academy.