OUR Constitution views the Union and the States as juristic persons, capable of owning and acquiring property, making contracts, carrying on trade or business, brtnging and defending legal actions, just as private persons, subject to modifications specified in the Constitution Itself.
The Union and a State can acquire property in several way
Succession : Broadly speaking, the property, assets, rights and liabilities thai belonged to the Dominion of India or a Governor's Province or an Indian State at the commencement of the Constitution devolved by virtue of the Constitution, on the Union or the corresponding State under the Constitution
Bona Vacantia : Any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall in any other case, vest in the Union [Art. 296]. Thus, the disputed property of a person dying a civil death (not heard of for more than seven years) without leaving any heir, would vest in the Gram Sabha and should be recorded in its name even if no objection has been filed by it
Things underlying the Ocean. All lands, minerals and other things of value underlying the ocean within the territorial waters of India shall vest only in the Union
Compulsory Acquisition by Law: Both the Union and State Legislatures shall be competent to compulsorily acquire Or requisition property by making law. The constitutional obligation to pay compensation has been abolished, by the omission of Art. 31(2) by the 44th Amendment Act, 1978.
Acquisition under Executive Power : The Government of India or a State may make contracts and acquire property, say by purchase or exchange, just as a private individual. in exercise of their respective powers, and for the purposes of their respective Governments and the decision of the government in granting contracts/licences to private bodies/companies can be questioned only the grounds of bad faith, based on irrational or irrelevant considerations, non-compliance with the prescribed procedure or violation of any constitutional or statutory provision. But for compulsorily taking a person's property a law will be required to authorise It
The Union or a State Government is competent to carry on any trade or business and make contracts for that purpose, in exercise of its executive power. Such business shall, however, be subject to regulation by the competent Legislature. That is to say. if the Union Government takes up a business relating to a subject (say, agriculture) which is included in the State List, the business will be subject to the legislative jurisdiction of the State Legislature
The Union or a State, while legislating with respect to a trade or business carried on by Itself, is immune from a constitutional limitation to which it would have been otherwise subject.
If an ordinary law excludes a citizen from carrying on a particular business, wholly or partially, the reasonableness of such law has to be tested under Art. 19(6).
Thus, if the State creates a monopoly in favour of a private trade without any reasonable justification, such law is liable to be held unconstitutional by the Courts.
But if a law creates a monopoly in favour of the State itself as a trader, whether to the partial or complete exclusion of citizens, the reasonableness of such law cannot be questioned by the Courts [Exception (ii) to Aft. 19(6)].
In short, it is competent for the Union or a State not only to enter into a trade but also to create a monopoly in its own favour in respect of such trade.
This is what is popularly known as the 'nationalisation' of a trade.
As stated already, both the Union and State Governments have the power to enter into contracts like private individuals, Government or in relation to the respective spheres of their executive power.
But this contractual power of the Government is subject to some special formalities required by the Constitution, in addition to those laid down by the Law of Contract which governs any contract made in India
The reason for imposing these special conditions is that contracts by Government raise some problems which do not or cannot possibly arise in the case of contracts entered into by private persons.
Thus, there should be a definite procedure according to which contracts must be made by its agents, in order to bind the Government; otherwise public funds may be depleted by clandestine contracts made by any and every public servant,
The formalities for contracts made in the exercise of the executive power of the Union or of a State, as laid down in Art. 299, are that the contract
(a) must be executed by a person duly authorised by the President or Governor, as the case may be;
(b) must be executed by such person 'on behalf of the President or Governor, as the case may be:
(c) must be 'expressed to be made by' the President or Governor, as the case may be.
If any of these conditions are not complied with, the contract is not binding on or enforceable against the Govemment
Though a suit may lie against the officer who made the contract, in his personal capacity.
The right of the Government to sue and its liability to be sued, like a private individual in the ordinary Courts, is also subject to certain special considerations.
Article 300(1) of the Constitution says- "The Government of India may sue or be sued by the name or the Union of India and the Government of the State may sue or be sued by the name of the State and may subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs In the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued If this Constitution had not been enacted."
This Article, however, does not give rise to any cause of action, but merely says that the State can sue or be sued, as a juristic personality, in matters where a suit would lie against the Government had not the Constitution been enacted, subject to legislation by the appropriate Legislature.
No such legislation has, however, been undertaken so far. For the substantive law as to the ability of the State, therefore, we have to refer to the law as it stood before the commencement of the Constitution.
1. Right to Sue. So far as the right to sue is concerned, the Government of India may sue by the name of the 'Union of India', while a State may sue by the name of that State.
Either Government may sue not only a private person but also another Government.
Thus, the Union may bring a suit against one or more States; while a State may sue another State or the Union [Art. 131].
It Is to be noted that when the suit is against a private individual, the suit will have to be instituted in the Court of the lowest jurisdicuon, according to the law of procedure;
but in the case of a suit between two Governments, it must be instituted in the highest tribunal, namely, the Supreme Court, which has exclusive original jurisdiction over such federal litigation.
II. Liability to he Sued. In this manner, a distinction is to be made between contractual liability and the liability for torts or civil wrongs. because such distinction has been observed In India since the days of the East India Company, up to the commencement of the Constitution, and that position is maintained by Art. 300 of the Constitution, subject to legislation by Parliament.
(a) Contract. In India, direct suit had been allowed against the East India Company, the Secretary of State or the existing Governments in matters of contract, instead of a petition of right by which a British subject sought relief from the Crown, as a matter of grace.
The Government of India Acts expressly empowered the Government to enter into contracts with private individuals and the corresponding provision in the Constitution in Art 299(1) maintains that position.
Subject to the formalities prescribed by Art 299 and to statutory conditions limits, the contractual liability of the State, under our Constitution, is the same as that of an individual under the ordinary law of contract
(b) Torts. The liability of the State under the existing law, for actionable wrongs committed by its servants, cannot be so simply stated as in the case of contracts.
The state of the law is unnecessarily complicated by reason of its being founded on the position of the British Crown under the Common Law and of the East India Company upon its supposed representation of the sovereignty of the Crown, both of which have become archaic, owing to the changes in history and law.
Even in England, the Common Law maxim that the 'King can do no wrong' has been superseded by the Crown Proceedings Act, 1947.
Nevertheless. in the absence of any such corresponding legislation, Courts in India have no alternative than to follow the existing case-law which is founded on the old English theory of Immunity of the State, founded on the maxim 'King can do no wrong'.
The existing law in India, thus, draws a distinction between the sovereign and non-sovereign functions of the Government and holds that Government cannot be sued for torts committed by the Government or its officers in the exercise of its 'sovereign' functions.
Thus, it has been held- (A) No action lies against the Government for injury done to an individual in the course of exercise of the sovereign juncfions to the Government, such as the following;
(i) Commandeering goods during war;
(ii) making or repairing a military road;
(iii) administration of justice;
(iv) improper arrest.
negligence or trespass by Police officers;
(v) wrongs committed by officers in the performance of duties imposed upon them by the Legislature, unless, of course, the statute itself prescribes the limits or conditions under which the executive acts are to be performed; or the wrongful act was expressly authorised or ratified by the State;
(vi) loss of movables from Government custody owing to negligence of officers;
(vil) payment of money in custody of Government to a person other than the rightful owner, owing to negligence of an officer in the exercise of statutory duty, where Government does not derive any benefit from such transaction, e.g., by a Treasury Officer paying money to a wrong person on a forged cheque owing to negligence in performing his statutory duty to compare the Signature.
But gradually the ratio of list of sovereign functions is being limited.
The Supreme court has adopted a pro-people approach. In Rudul Shah in a writ petition the Court ordered compensation to be paid for deprivation of liberty. The Supreme Court observed that no civilised system can permit an executive to play with the people of a country and claim to be sovereign.
To place the State above the law is unjust and unfair to the citizen.
In the modern sense the distinction between sovereign and non-sovereign functions does not exist.
The immunity is available to those rare and limited cases where the statutory authority acts as a delegate of such functions for which it cannot be sued in a Court of law.
The theory of sovereign power, propounded in Kasturi Lal case has yielded to new theories and is no Longer available in a welfare state in which functions of the government are manifold, all of which cannot be said to be the activities relating to exercise of sovereign powers.
Running of a railway is a commercial activity. Establishing the Yatri Niwas at various railway stations to provide lodging and boarding factlities to the passengers on payment of charges is a part of commercial activity of the Union of India which cannot be equated with the exercise of sovereign power.
The employees deputed to run the Railways and to manage the establishment, including the railway stations and the Yatri Niwas, are essential components of the government machinery carrying on commercial activity.
If any of such employees commits an act of tort. the Union Government can be held liable in damages to the person wronged by those employees.
The efficacy of Kasturi Lal case as a binding precedent bas been eroded. Hence. the Supreme Court upheld the award against the Railways of a compensation of Rs. ten lakbs by the High Court to a foreign passenger, victim of gang-rape committed by the" railway employees in a room of a Railway Yatri Niwas
Likewise the persons employed in government hospitals cannot claim sovereign immunity and the government will be liable for their tortious acts.
(B) On the other hand, a suit lies against the Government for wrongs done by public servants in the course of transactions which a trading company or a private person could engage in such as the following:
(I) Injury due to the negligence of servants of the Government employed in a dockyard or a railway;
(il) trespass upon or damage done to private property in the course of a dispine as to right to land between Government and the private owner, even though committed in the course of a colourable exercise of statutory powers;
(ill) the State is liable to be sued for restitution of the profits unlawfully made, just. as a private owner, e.g.• where Government retains property or moneys unlawfully seized by its officers.
a sum lies against the Government for its recovery, with interest;
(iv) defamation contained in a resolution issued by Government;
(v) injury caused by a Government vehicle while such vehicle was not being engaged in carrying out any sovereign function, or engaged in famine relief work.
Though the State itself is immune from liability in certain cases owing to historical reasons, our Constitution does not grant any immunity to a public servant for his official acts which are unlawful under the ordinary law of the land.
The only exception to this rule is a limited immunity granted to the heads of State, namely, the President and a Governor.
Both for their political and personal acts, while in office
1. Official Acts. The immunity given for official acts of the President or the Governor is absolute but it is limited only to the President and the Governor personally, and no other person can shield himself from legal liability on the plea that it was done under orders or the President or a Governor.
The President or a Governor is Immune from legal action and cannot be sued in a Court, whether during office or thereafter, for any act done or purported to be done by them or for any contract made in exercise of their powers and duties as laid down by the Constitution or by any law made thereunder [Art. 361(1)1.
Though the President is liable to be impeached and the Governors may be dismissed by the President for any unconstitutional act done in exercise of their official powers, no action lies in the Courts.
It follows from the rule of personal immunity that no Court can compel the President or the Governor to exercise any power or to perform any duty nor can a Court compel him to forbear exercising his power or performing his duties.
He is not amenable to the writs or directions issued by any Court
The remedy to an individual for wrongful official acts of the President or a Governor is twofold-
(i) To bring appropriate proceedings against the respective Government itself, where such proceedings lie
(il) To bring an action against the public servant, individually, who has executed the wrongful order of the President or Governor, and must, therefore. answer to the aggrieved individual, under the ordinary law of crimes or civil wrongs, subject to limitations.
In this connection, it should be noted that while the Constitution grants personal immunity to the President or a Governor for official acts, no such immunity is granted to their Ministers.
But by virtue of the peculiar position of Ministers as regards official acts of the President or the Governor, as the case may be, it is not possible to make a Minister liable in a court of law, for any official act done in the name of the President or Governor.
As pointed out earlier, the position in this respect in India differs from that in the United Kingdom.
In England, every official act of the Crown must be countersigned by a Minister who Is responsible to the law and the Courts for that act But though the principle of ministerial responsibility has been adopted in our Constitution, both at the Centre and in the States, the principle of legal responsibility has not been introduced In the English sense.
There is no requirement that the acts of the President or of the Governor must be countersigned by a Minister.
Further, the Courts are precluded from enquiring as to what advice was tendered by the Ministers to the President or the Governor.
It is clear, therefore, that the Ministers shall not be liable for official acts done on their advice. But there is no immunity for offences committed in their personal capacity.
Personal Acts. The immunity of the President or a Governor for personal acts committed by him during the term of his office is limited to the duration of such Office term.
(a) As regards crimes, no proceedings can be brought against them or continued while they are in office: but there is nothing to prevent such proceedings after their office is terminated by expiry of term, dismissal or otherwise.
(b) As regards civil proceedings, there is no such immunity, but the Constitution imposes a procedural condition:
Civil proceedings may be brought against the President or a Governor, in respect of their personal acts, but only if two months' notice in writing has been delivered to the President or Governor.
As stated before, the Constitution makes no distinction in favour of Government servants as to their personal liability for any unlawful act done by them whether in their official or personal capacity.
There is only one provision in the Constitution relating to the liability of public servants: but the general law imposes certain conditions as regards their liability for official acts, In view of their peculiar position. These may be analysed as follows:
(i) If a contract made by a Government servant in his official capacity complies with the formalities laid down in Art. 299, It is the Government concerned which will be liable in respect of the contract and not the officer who executed the contract (Art. 299(2)].
If, however, the contract is not made in term of Art. 299(2), the officer who executed It would be personally liable under it, even though he may not have derived any personal benefit
(ii) As stated earlier, in India, the Government is not liable to answer In damages for its 'sovereign' acts. In such cases, the officer through whom such act is done Is also immune.
In other cases, action will lie against the Government as well as the officer personally, unless- (a) the act has been done, bona fide, in the performance of duties imposed by a statute;
(b) he Is a judicial officer, within the meaning of the Judicial Officers' Protection Act, 1850. This Act gives absolute immunity from a civil proceeding to a judicial officer for acts done in the discharge of his official duty.
But any civil action. whether in contract or in torts, against a public officer "in respect of any act purported to be done by such public officer in his official capacity", Is subject to the procedural limitations in the Code of Civil Procedure which include a two months' notice as a condition precedent to a suit
The criminal liability of a public servant is the same as that of an ordinary citizen except that-
(a) There is no liability for Judicial acts for acts done in pursuance of judicial orders
(b) Officers, other than judicial, are also immune for any act which they, by reason of some mistake of law or fact, in good faith, believed themselves to be bound by law to do it
(c) Where a public servant who is not removable from his office save by or with the sanction of the Central or State Government is accused of an offence, committed by him while acting or purporting to act in the discharge of his official duty, no Court can take cognizance of such offence without the previous sanction of the Central Government or the State Government, as the case may be
(iv) For acts done for the maintenance or restoration of order in an area where martial law was in force, Parliament may exempt the officers concerned from liability by validating such acts by making an Act of Indemnity
Article 311 says that the all civil servants
occupy posts during the
pleasure of the president. But some restrictions are there
on this to safeguard
against arbitrary dismissal:
1. No civil servant can be dismissed or removed by an authority subordinate to the one that appointed him.
2. A servant can’t be dismissed except by inquiry where he is informed of the charges and given reasonable opportunity to defend himself.
The above safeguards aren’t applicable to people holding defence posts or military service.
The second safeguard is not applicable when the civil servant is convicted of an offence, the disciplinary authority states in writing reasons that it’s not practical to hold such an inquiry or president or governor feel that in interest of security of state such an inquiry isn’t needed.
Under article 323A the parliament can establish administrative tribunal for speedy justice to aggrieved civil servants. The central administrative tribunal [CAT] and state administrative tribunals [SAT] have been formed under this.
CAT has 1 chairman and 65 members all have rank of HC judges and are appointed by the president. It has 17 benches 15 of which operate from high courts. Term of chairman is 5 yrs or till age of 65 and members if 5 yrs or till age of 62 whichever is earlier. It has original jurisdiction on recruitment and all service matters of public servants. Appeals are heard by HC. It is guided by principles of natural justice.
SAT and Joint administrative tribunals can be established by parliament after states make a request. The president appoints chairman and members after consulting the governor or governors of concerned states.
Article 323B allows parliament and state legislatures to establish tribunals for other matters too. HC and SC have appellate powers over these. Tribunals under article 323A don’t have a hierarchy but under 323B can be in a hierarchy.
The Parliament as well as the state
legislatures is empowered to
make laws for the compulsory acquisition of private
property by the governments.
Compensation has to be paid only:
(a) When the government acquires the property of a minority educational institution; and
(b) When the government acquires the land
held by a person under his
personal cultivation and the land is within the statutory
ceiling limits
The government (Union or states) in India can
be sued for torts
(civil wrongs) committed by its officials only in the
exercise of its
non-sovereign functions but not in the sovereign
functions. Judicial officers
enjoy legal liability for official acts.
Civil servants are not personally liable for
official acts but the
government is. However if the contract isn’t made as per
directions given in
the constitution then the civil servant is liable
personally.
Civil proceedings can be instituted
against them for anything done
in their official capacity after giving a two months’
advance notice.
Criminal proceedings can be instituted
against them for acts done in their official capacity,
with the prior
permission of the president or the governor, where
necessary.
They aren’t immune from civil or criminal liability for personal actions.
Constitution leaves to the President the
power to specify as to what
castes or tribes in each state and union territory are to
be treated as the SCs
and STs. Thus, the lists of the SCs or STs vary from state
to state and union
territory to union territory.
In case of the states, the President issues
the notification after
consulting the governor of the state concerned. But, any
inclusion or exclusion
of any caste or tribe from Presidential notification can
be done only by the
Parliament.
The Constitution has placed the following restrictions on the taxing powers of the states:
(i) A state can impose taxes on professions.
But, the total amount
of such taxes on a person should not exceed Rs. 2,500 per
yr.
(ii) A state legislature can impose taxes on
the sale or purchase of
goods (other than newspapers) within the state only except
import – export duty
and interstate trade duty or on goods declared by
Parliament to be of special
importance in inter-state trade and commerce.
(iii) A state legislature cant impose tax on
the consumption or sale
of electricity except that consumed by the Centre or sold
to the Centre; or
railways.
(iv) A state legislature can impose a tax in respect of any water or electricity traded by authority established by Parliament for regulating or developing any inter-state river or river valley but such a law must receive president’s assent.
A. Taxes Levied by the Centre but
Collected and Appropriated by the
States (Article 268) namely
(i) Stamp duties on bills of exchange, cheques, promissory notes, policies of insurance, transfer of shares and others.
(ii) Excise duties on medicinal and toilet
preparations containing
alcohol and narcotics.
The proceeds of these duties are fully assigned to that state.
B. Service Tax Levied by the Centre but Collected and Appropriated by the Centre and the States (Article 268-A) is divided amongst centre and state as per law.
C. Taxes Levied and Collected by the Centre
but Assigned to the
States (Article 269) namely
(i)Taxes on the sale or purchase of goods (other than newspapers) in the course of inter-state Trade or commerce.
(ii) Taxes on the consignment of goods in the course of inter-state trade or commerce.
E. Surcharge on Certain Taxes and Duties for Purposes of the Centre (Article 271) goes fully to centre.
F. Taxes Levied and Collected and Retained by the States are taxes on matters in state list.
Grants-in-Aid to the States are of types: Statutory grants and Discretionary grants:
It is an adhoc advisory body that suggest amendments to old laws. However such suggestions are non binding on the government.
Members are experts chosen by the government. Tenure is 3 years. Chairman and 4 members are present.
Appoint such a commission after 5 years from the date of commencement of the Constitution and then after every 10 years - Article 344.
This committee makes non binding recommendations to the Parliament for use of Hindi as the official alnguage.
Convention is to have Home minister as the chairman.
30 members with 20 from Lok Sabha and 10 from Rajya Sabha.
LANGUAGES offered a special problem to the makers of the Constitution simply because of the plurality of languages used by the vast Language population.
The makers of the Constitution had, therefore, to select some of these languages as the recognised medium of official communication
In order to save the country from a hopeless confusion.
Fortunately for them, the number of people speaking each of these 1,652 languages was not anything like proportionate and some 22 languages (included in the 8th Schedule of the Constitution, see Table XX) could easily be picked up as the major languages of India, used by 91 per cent of the total population of the country, and out of them, Hindi, Including its variants Urdu and Hindustanl, could claim 46 per cent
Hindi Devanagari script was accordingly prescribed as the official language of the Union (subject to the continuance of English for the same purpose for the limited period of 15 years)
For the development of the Hindi language as a medium of expression for all the elements of the composite culture of India, the assimilation of the expressions used in the other languages specified in the Eighth Schedule was recommended [ArL 351].
But though one language was thus prescribed for the official purposes of the Union, and the makers of the Constitution sought to afford relief to regional linguistic groups by allowing the respective State Legislatures and the President to recognise some language or languages other than Hindi as the languages for intra-State official transac- tions or any of them.
These provisions thus recognise the right of the majo- rity of the State Legislature or a substantial section of the population of a State to have the language spoken by them to be recognised for official purposes within the State.
In the result, the provisions of the Constitution relating to Official Language have come to be somewhat complicated
The Official language of the Union shall be Hindi in Devanagri script
But, for a period of fifteen years from the commencement of this Constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement
Even after the expiry of the above period of 15 years, Parliament may by law provide for the use of-
(a) The English language, or
(b) The Devanagri form of numerals, for such purposes as may be specified in the law
In short, English would continue to be the official language of the Union side by side with Hindi, until 1965, and thereafter the use of English for any purpose will depend on Parliamentary legislation.
Parliament has made this law by enacting the Official Languages Act. 1963, which will be presently noted.
In making its recommendations, the Commission shall have due regard to the industrial, cultural and scientific advancement of India and the just claims and interests of persons belonging to the non-Hindi speaking areas in regard to Public Services.
The recommendations of the Commission will be examined by a Joint Parliamenrary Committee consisting of thirty members of whom twenty shall be elected from the Lok Sabha and ten from the Rajya Sabha in accordance with the system of proportional representation by single transferable vote.
The Committee will examine the recommendations of the Commission and report their opinion to the President
The OffiCial Language Commission was, accordingly appointed with Sri B.G. Kher as Chairman, and It submitted its Report In 1956 which was presented to First Parliament in 1957 and examined by a joint Offici~ .Language Parliamentary Committee. The recommendations of Commission
The Parliamentary Committee upon a consideration of the Report of the Official Language Commission were as follows
The Constitution contains an integrated scheme of official language and its approach to the question is flexible and admits of appropriate adjustment being made within the framework of the scheme.
(b) Different regional languages are rapidly replacing English as a medium of instruction and of official work in the States. The use of an Indian language for the purposes of the Union has thus become a matter of practical necessity, but there should be no rigid limit. It should be a natural transition over a period of time effected smoothly and with the minimum of inconvenience.
(c) English should be the principal official language and Hindi the subsidiary official language till 1965. After 1965, when Hindi becomes the principal official language of Union, English should continue as the subsidiary ofJicial language.
(d) No restriction should be imposed for the present on the use of English for any of the purposes of the Union and provision should be made for continued use of English even after 1965 for purposes to be specified by Parliament by law as long as may be necessary.
(e) Considerable importance attaches to the provision in Art. 351 that Hindi should be so developed that it may serve as a medium of expression for all elements of the composite culture of India, and every encouragement should be given to the use of easy and simple diction.
In pursuance of the above recommendations of the Parliamentary Committee the President issued an Order containing directions by way of implementing the above recommendations.
The main direction was as regards the evolution of Hindi terminology for scientific, administrative and legal literature and the translation of English literature on administrative and procedural matters into Hindi.
For the evolution of such terminology, the Official Language Commission recommended the constitution of two Standing Commissions.
(A) For the development of legal terminology and preparation of authoritative texts of Central Acts in Hindi and other languages a Commission [known as the Official Language Legislative Commission] was constituted In 1961.
It was abolished in 1976 and its functions have been assigned to the Legislative Department of the Government of India.
(B) The other Commission [known as the Commission for Scientific and Technical Terminology] is working under the Ministry of Human Resources.
Of the other recommendations of the Official Language Commission, the following, inter alia, were adopted in the President's Order
(i) English shall continue to be the medium of examination for the recruitment through the Union Public Service Commission but, after some time, Hindi may be admitted as an alternative medium, both Hindi and English being available as the media at the option of the candidate
Parliamentary legislation may continue to be in English but an authorised translation should be provided In Hindi. For this purpose," the Ministry of Law has been directed to provide for such translation and also to initiate legislation to provide for an authorised Hindi translatton of the text of Acts passed by Parliament.
[iii) Where the original text of Bills introduced or Acts passed by a State Legislature is in a language other than Hindi, a Hindi translation may be published with it besides an English translation as provided in C1. (3) of Art 348.
(iv) When the time comes for the change-over, Hindi shall be the language of the Supreme Court.
(v) Similarly, when the time for change-over comes, Hindi shall ordinarily be the language of Judgments, decrees or orders of Courts, in all regions; but by undertaking necessary legislation, the use of a regional official language may' be made optional instead of Hindi, with the previous consent of the President.
The Constitution further provides that the language for the time being authorised for use in the Union for official purposes (ie., English) shall be the official language of communication between one State and another State and between a State and the Union.
If, however, two or more States agree that the Hindi language should be the official language for communication between such States, that language may be used for such commurucanon Instead of Englisb (Art. 346).
The Legislature of a State may by law adopt anyone or more of the languages in use in the State or Hindi as the language to be used for all or any of the official purposes of that State
Provided that, until the Legislature of the State otherwise provides by law, the English language shall continue to be used for those official purposes within the State for which it was being used immediately before the commencement of this Constitution.
There is also a provision for the recognition of any other language for the official purposes of a State or any part thereof, upon a substantial popular demand for it being made to the President [Art. 347].
Until Parliament by law otherwise provides
(a) all proceedings in the Supreme Court and in every High Court, for Acts, Bills, etc.
(b) the authoritative texts of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and
of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State,
shall be in the English language.
A State Legislature may, however, prescribe the use of any language other than English for Bills and Acts passed by itself, or subordinate legislation made thereunder.
Similarly, the Governor of a State may, with the previous consent of the President, authorise the use of Hindi or an other language used for official purposes of the State, in proceedings in the Court of the State, but not in judgments, decrees or orders (which must continue to be in English until Parliament by law otherwise provides
The foregoing provisions of the Constitution are now to be read subject to the modifications made by the Official Languages Act, 1963 and the Authorised Translations (central Laws) Act, 1973 and the new Art. 394A, inserted in the Constitution In 1987.
In 1973, Parliament enacted the Authorised Translations (Central Authorised Laws) Act, 1973, to provide that when a Central Law is translated into a regional language and published in the Official Gazette, under the authority of the President, such translation shall be deemed to be the authorised translation thereof in such Language.
The Draft Constitution as well as the Constitution adopted by the Art. 394A. Constituent Assembly on the 26th November, 1949, was in the English language.
After it was officially translated into Hindi, Art. 394:A was inserted into the Constitution, by the 58th Amendment Act, 1987, in order to give it effective authority.
In pursuance of this Article, the President published in the Gazette of India, the Hindi text which, according to CL (2) of Art 394A, shall be construed to have the same meaning as the Original text in the English language, and in case of any difficulty arising in this matter, the President shall direct the Hindi text to be suitably revised.
The provisions of the Official Languages Act (as amended) are
Continuance of English Language for Official Purposes of the Union and Parliament.
Notwithstanding the expiration the period of fifteen years from the commencement of the Constitution, the English Language may, as from the appointed day, continue to be used, in addition to Hindi
(a) for all the official purposes of the Union for which it was being used immediately before that day; and
(b) for the transaction of business in Parliament
Authorised Hindi Translation of Central Acts, etc.
A translation in Hindi published under the authority of the President in the Official Gazette on an after the appointed day, (a) of any Central Act or of any Ordinance promulgated by the President, or
(b) of any order. regulation or bye-law issued under the Constitution or under any Central Act,
shall be deemed to be authoritative text thereof in Hindi.
(2) As from the appointed day the authoritative text In the English language of all Bills to be introduced or amendments thereto to be moved in either House of Parliament shall be accompanied by a translation of the same in Hindi authorised in such manner as may be prescribed by rules made under this Act
Authorised Hindi Translation of State Acts in Certain Cases Where the Legislature of a State has prescribed any language other than Hindi for use in Acts passed by the Legislature of the State or in Ordinances promulgated by the Governor of the State
A translation of the same in Hindi, in addition to a translation thereof in the English language as required by Cl. (3) of Art. 348 of the Constitution, may be published on or after the appointed day under the authority of the Governor of the State in the Official Gazette of that State and in such a case, the translation In Hindi of any such Act or Ordinance shall be deemed to be the authoritative text thereof in the Hindi language .
Optional Use of Hindi or other Official Language in Judgments, etc., of High Courts.
As from the appointed day or any day thereafter, the Governor of a State may with the previous consent of the President, authorise the use of Hindi or the official language of the State, in addition to the English language, for the purposes of any judgment, decree or order passed or made by the High Court for that State
And where any judgment, decree or order Is passed or made in any such language (other than the English language), it shall be accompanied by a translation of the same in the English language issued under the authority of the High Court.
Inter-State Communications. (a) English shall be used for purposes of communication between the Union and a State which has not adopted Hindi as its official language.
(b) Where Hindi is used for purposes of communication between one State and another whlch has not adopLed Hindi as its official language, such communication in Hindi shall be accompanied by an English translation thereof.
The Constitution lays down certain special directives in respect of not only the offlctal language but also the other languages in use in the different parts of the country.
In order to protect the interests of the linguistic minorities.
As regards the official language-the directive is, for the promotion and development of the Hindi language so that It may serve as a medium of expression for all the elements of the composite culture of India
And this is laid down as a duty of the Union; and the Union is further directed to secure the enrichment of Hindi without interfering with its genius, the style and expressions, used in the Hindustani and other languages (specified in the Eighth Schedule) and by giving primary importance to Sanskrit in this respect
The Government of India has already implemented this directive by taking a number of steps for the popularisation of Hindi amongst the non-Hindi speaking people, particularly its own employees.
But not enough has been done for the promotion of Sanskrit so as "to secure the enrichment of Hindi by drawing on Sanskrit', which the State is enjoined to do, by Art. 351.
The Supreme Court has clearly spelt out that in view of the importance of Sanskrit for nurturing our cultural heritage it is necessary to include it as an elective subject at the secondary school level
There cannot be any objection from any enlightened man to any effort for the promotion of any Indian language, at least any of those specified in the 8th Schedule.
But there Is a constitutional aspect which does not appear to have been duly considered by the authorities.
A newspaper reports one of objectives of this Academy is to translate religious scriptures like the Quran, at the expense of the Academy.
The resources of the Academy be the public revenues, raised by taxation, any appropriation of such resources for the promotion or maintenance of any 'particular religion' shall be hit by Art. 27.
The reason behind Art. 27 is that India is a 'secular State' where all religions are on a status of equality so far as the State is concerned.
If the State really wants to promote the languages at Government expenses, the only constitutional way would be to set up an Academy of languages, embracing all the languages in the 8th Schedule, so that Sanskrit, Urdu, Bengali, etc., would have an equal treatment, and all religious activities should be excluded from the programme of such an Academy, because there being numerous religions in India, there is a likelihood of some religion being excluded in the venture, leadlng to a violation of Art. 27
As regards research into the Sanskrit language for enriching the vocabulary of Hindi [Art. 351], a branch should be opened specifically for this purpose and, if any activities are already being undertaken, they should be speeded up and the glossaries produced should be available to the people at a low cost.
The extension of such an organisation Itself will provide employment to Sanskrit scholars and thus provide incentive to the otherwise unprofitable study of Sanskrit.
For the protection of the other languages in use, the following directives are provided-
(i) For the submission of representation for the redress of any grievance to any officer or authority of the Union or a State the petitioner is authorised to use any of the languages used in the Union or in the State as the case may be. In either words, a representation cannot be rejected on the ground that it is not in Hindi.
Every State and other local authority within a State is directed to provide adequate facilities for instruction in the mother tongue at the preliminary stage of education to children belonging to linguistic minority groups and the President Is authorised to issue such directions to any State as he may consider necessary for the securing of such facilities
(ill) A Special Officer for linguistic minorities shall be appointed by the President to investigate all matters relating to the safeguards provided by the Constitution for linguistic minorities and to report to the President upon those matters.
It shall be the duty of the President to cause all such reports to be laid before each House of Parliament and also to be sent to the Government of the State concerned
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