INDIAN CONSTITUTIONAL LAW : THE NEW CHALLENGE

PAPER – II

INDIAN CONSTITUTIONAL LAW : THE NEW CHALLENGE

 PARLIAMENTARY / PRESIDENTIAL FORMS OF GOVERNMENT :

There r two main forms of modern govts. – democracy & dictatorship.  A modern

democratic govt. may hv parliamentary or presidential pattern of govt.  If the executive &

legislative branches r unified & co-ordinated under the control of the same persons,

such a system is called parliamentary.  If the executive & legislative branches r largely

independent of one another, but each possessing checks on the powers of the other in

order to make power limited, controlled & diffused, the system is presidential.

In a parliamentary system, a clear distinction is made b/w the head of the State & the

head of the govt.  The head of the State, King or Queen in Britain or the President in

India possesses all the powers & privileges which the constitution & laws may confer

upon him, but in practice he exercises none.  He is simply the bearer of authority.  In

India, the authority of the President was governed by conventions inherited from Britain

& deemed as sine qua non of a parliamentary system of govt.  The 42nd Constitution

Amendment Act, 1976 gave the convention a constitutional sanction & provided that the

advice of the Council of Ministers (CoM) shall be binding on the President.

The Govt. is constituted from the majority party or a combination of parties, if they agree

on certain fundamentals for purpose of coalition.  The normal procedure is that the Chief

Executive, Monarch or President summons the leader of the majority party or coalition /

the PM, who chooses his own team of ministers from among the members of his party

including a few from outside if necessary & in case there is no constitutional bar to such

an inclusion.  The CoM is collectively responsible to the legislature.  Out of the CoM, the

PM chooses some 15 or more, but generally not more than 20 persons & they make a

Cabinet.  Cabinet is a wheel within a wheel & it is the pivot on which the whole political

machinery revolves.  It is the supreme directing authority, the magnet of policy, which

coordinates & controls the whole of the executive govt. & integrates & guides the work

of the legislature.  There is a sharp distinction b/w a Cabinet & the CoM.  The members

of the Cabinet meet collectively under the chmn/ship of the PM, generally once a week,

to decide upon the policy and in general head up the govt.

The CoM is headed by the PM.  He is the captain of the team, which plays the game of

politics in accordance with the mandate received at the general elections.  The PM

(i) he is the head of the Ministry, i.e., the govt. of the country;

(ii) he is also the leader of the legislature of the country;

(iii) he is the person through whom the head of the State/King/Queen or President

normally communicate with the Cabinet; &

(iv) he is the head of the legislative wing of the party & responsible for maintaining

harmony with its organizational wing.

Parliamentary System – Pre-requisites, Merits & Drawbacks

Parliamentary system is the most cherished & aspired for as it is based on the fact that

the govt. is carried on in the name of the head of the State by Ministers who r the

members of the majority party/coalition in the parliament.

The first pre-requisite is the presence of a titular executive – head of the State.  The

head of the State is not the directing & deciding factor responsible before the nation for

measures taken.  Secondly, the CoM in a parliamentary system is answerable to the

legislature & they remain in office as long as they retain its confidence individually &

collectively.  Thirdly, a certain degree of moderation among political parties.  If cabinet

& parliament disagree / in case of deadlock, the electorate will decide b/w them.  The

appeal to the people is the ultimate source of the political authority & the only logical

manner of settling any serious dispute b/w rival agencies of the State.  Finally, Cabinet

is the secret body & collectively responsible for its decisions.  It must deliberate in

This is the only form which ensures harmonious co-op. b/w the executive & legislative

branches of the govt.  The ultimate appeal rests with people & govt. must remember

them to whom it will have to a/c in future.  In parliamentary system, the majority party

forms the govt. & the minority constitutes the Opposition.  The Opposition must oppose

& criticize the govt.  The then President R.Venkataraman, in his inaugural address to

37th Commonwealth Parliamentary Conference held at New Delhi described the system

of Parliamentary democracy as superior to all other systems & emphasised that if

worked properly & honestly, there was perhaps no better substitute than the

representative Parliamentary democracy.  Another merit is its flexibility & elasticity.

(i) Parliamentary system violates the theory of separation of powers.  Combination

of executive & legislative functions in the same set of individuals leads to tyranny.

(ii) It is unstable.  The govt. has no fixed life.  It remains in office only so long as it

can retain parliamentary majority.

(iii) Cabinet system is said to be insufficient because it is govt. by amateurs.  Its

ever-growing size is not suitable for prompt & effective discussion & decision.

(iv) Political power is monopolised by the majority party.  So long as parliamentary

majority is assured, it assumes dictatorial powers.

(v) The Cabinet Govt. is charged with lack of promptness in deciding & taking

immediate action in times of war or national crisis or emergency.

If there is no proper balance b/w the powers of the executive & the legislature, the result

is likely to be either the executive becomes too powerful & the legislature becomes very

weak as is the case in Britain & India or the executive becomes very weak & unstable

and the legislature begins to dominate as was the case in France in the 3rd & 4th

Republic.  Suggestions for Improvement :

(i) Effective work is done by a talented & dedicated minority, not by the bulk of

membership.  Political parties alone can & should ensure that man with the

capacity & will to keep the govt. on is used & elected to either House.  Members

should be encouraged to specialise in choosing areas.  Grooming of shadow

ministers & funding of recognised political parties by the State to build the strong

Secretariat would be a great help.

(ii) Parliamentary work is a whole-time job being performed by almost all the

(iii) Secretarial staff, adequate emoluments & other necessary facilities should be

(iv) There should be specialised committees concerned with particular depts.

Devices should be adopted to make the executive strong.

(v) A strong alert, comptnt. & united Opposition is sine qua non of responsible

parliamentary govt., but in India it has throughout bn fragmented & weak.  In

order to avoid the dictatorship of the Cabinet, Opposition should be so strong that

if need arise it may be able to form an alternative govt.  This is quite possible in

(vi) The legislature must have faith in the primacy of moral values & ethical conduct

in public life & promote civility & graciousness.  However, it is a two way traffic

b/w the people & the elected representatives.

(vii) Rigidity of party discipline should be slightly relaxed & members of the ruling

party should be allowed to speak a little freely than at present & also to vote in

exceptional cases according to their conscience.

(viii) The legislators must remain in constant touch with their electorate & the people

at large, who also have an obligation & duty to have their eyes on their

representatives’ conduct, performance & to keep them straight.

Presidential System – Pre-requisites, Merits & Drawbacks

The independence of the legislative & executive powers is the specific quality of

Presidential Govt.  Neither is there Cabinet nor r there Ministers.  The members r not

members of the legislative majority party.  They hv no access to d legislature.  They

don’t take part in the debate & hv no locus standi to initiate or to defend the policy of the

It has its origin in the United States.  Pakistan also adopted this system under General

Ayub Khan, but again reverted to the Parliamentary System in 1973.  There r two

factors which influence the framers of the American Constitution against the Cabinet

form of govt.  Montesquieu’s theory of separation of powers also had a great appeal for

the Americans as separating the three branches of govt. has prevented tyranny &

absolutism.  The Cabinet govt. could function only when the life of the nation was

divided into distinct political parties – each with its separate programme & platform.  The

Presidency of the US is one of the greatest political offices in the world.  He is

absolutely free with respect to his exercise of powers & tenure of office, except that all

appointments made & treaties concluded by him r satisfied by Senate.  As his term of

office goes with the calendar, his responsibility to the electorate is unenforceable.  He

can only be impeached by the Senate.

The President is assisted by his Secretaries, who r heads of different depts.  They r

appointed by him & r responsible to him.  None of them is member of Congress nor is

he responsible to it.  He may send messages from time to time to Congress

recommending the enactment of particular laws, which r received favourably by the

Congress.  No doubt, the President can veto laws.  If the bill vetoed by him is again

passed by both the Houses of Congress with a 2/3rd majority in each House, it becomes

law without the signature of the President.

The American Presidency has six outstanding characteristics :-

(i) It is made executive, but it has grown;

(ii) It is a solitary not a collective executive;

(iii) It is popularly elected in practice directly;

(v) It is separated from Congress; &

(vi) It may be tinkered with, but can’t be reformed.

Without being responsible, this system retains a representative character.  The

President is an elected representative of the people, but his tenure doesn’t depend

upon the fluctuating will of the legislature.  A fix tenure of office accounts for greater

continuity of policy & firmness in the administration & it can be successfully carried out

without any fear of break.  It creates a stable executive within the framework of

democratic order.  Unity of control, quickness in decision & concerted policy, which

emergency of any kind demand, can best be obtained in this system.  The head of the

State is the Chief foreign policy maker & the Commander-in-Chief of the armed forces

of the country.  This is not possible in the Cabinet system of govt. This also makes

possible the appointment of experts to head various depts. of the govt. without

consideration of their party affiliations.  Since Secretaries/Cabinet Ministers hv no berth

in the legislature, work-load of Congress with them is negligible.  Nor hv they any

constituency to nurse or to look forward to the day of election.  Such a system is best

suited for countries inhabited by different communities with diverse interests.

It divides govt. into watertight compartments as it is based on separation of powers.  In

actual practice, there can be no rigid division b/w the executive & legislative depts.  To

divide them into independent & co-ordinate depts. is to create friction b/w them, which is

highly injurious to good & efficient govt.  Lack of direct initiative in legislation on the part

of the executive is a very serious defect.  Legislation is the main function, which is not

under the instructions of the executive.  Fixed tenure is not good & it is characterised to

be autocratic, irresponsible & dangerous.  Once the President has been elected, the

nation must continue with him whether they like or approve his policy or not.  The

President has his weaknesses & the greatest weakness is Congress.  The President

has no dependable way to command the legislature support, as the British Minister has.

Thus, the suggestion is to give Cabinet Members seats in Congress without the right to

On the whole, both forms of govt. have points of strength as well as of weakness.  The

shortcomings of the two forms of govt. may be removed by a very judicious & careful

combination of the best features of both the forms, i.e., stability of the presidential

system & responsibility of the executive to the legislature, a fundamental characteristics

of the parliamentary system.  Sri Lanka & France Constitutions offer interesting

examples of a mixed form of govt., but mixing of the two forms of govt. should vary from

country to country to suit the requirements & conditions of the country concerned.

Indian & Britain Constitutions establish a parliamentary form of govt.  There is a nominal

or constitutional head of the executive (President), whose functions r formal &

ceremonial.  The real executive power is vested in the CoM with the PM as the head.

The PM & his Cabinet r collectively responsible to the legislature & remain in office so

long as they enjoy the confidence of the legislature.

In presidential form of govt., President is the real executive head.  He is elected directly

by the people for a fixed term.  The members of his Cabinet r appointed by him & they r

personally responsible to him and not to the legislature.

 POWER OF JUDICIAL REVIEW + ARTICLES 72 & 161 :

Art. 13 provides for judicial review of all legislations in India – past as well as future.

This power has been conferred on the High Courts & the Supreme Court of India u/Art.

226 & 32 respectively, which can declare a law unconstitutional if it is inconsistent with

any of the provisions of Part III of the Constitution.

JR is the power of courts to pronounce upon the constitutionality of legislative acts

which fall within their normal jurisdiction.  In Kesavanand Bharti v. State of Kerala,

Khanna, J. said, “JR has become an integral part of our constitutional system & a power

has been vested in the SC & HCs to decide about the constitutional validity of the

provisions of statutes.  If the provisions of the statutes r found to be violative of any of

the Arts., which is the touchtone for the validity of all laws, the courts r empowered to

Power corrupts a man & absolute power corrupts absolutely, which ultimately leads to

tyranny, anarchy & chaos.  When Montesqieu gave his doctrine of separation of powers,

he has obviously moved by his desire to put a curb on absolute & uncontrollable power

in any one organ of the govt.  A legislature, an executive & a judiciary comprehend the

whole of what is meant & understood by govt.  It is by balancing each of these powers

against the other two that the efforts in human nature towards tyranny can alone be

checked & restrained thereby preserving the freedoms enshrined in the Constitution.

The concept has the origin in the theory of limited govt. & in the theory of two laws – an

ordinary & supreme (i.e., the Constitution).  Any act of the ordinary law-making bodies

contravenes the provisions of the supreme law must be void & there must be some

organ which is to possess the power or authority to pronounce such legislative acts

The doctrine of JR was for the first time propounded by the SC of America.  Originally,

the US Constitution did not contain any express provision for JR.  The power of JR was,

however, assumed by the SC of America in the historic case of Marbury v. Madison.

The Federalists had lost the election of 1800, but before leaving the office, they had

succeeded in creating several new judicial posts.  Out of 42, the retiring Federalists

President John Adams appointed 40.  The appointments of commissions were

confirmed by the Senate & they were signed & sealed, but Adam’s Secretary of State

failed to deliver certain of them.  When the new President Thomas Jefferson assumed

office, he instructed his Secretary of State James Madison not to deliver 17 of these

commissions including one for William Marbury, who filed a petition in the SC.  Held, S.

31 of the Judiciary Act was repugnant to Article III & S. 2 itself limited the SC’s original

jurisdiction to cases affecting ambassadors, other public ministers, consuls & those to

which a State is party.  Since Marbury fell in none of these categories, the Court had no

The Constitution is superior paramount law unchangeable by ordinary means & that an

Act of the legislature repugnant to the Constitution (the fundamental & paramount law of

the nation) is void.  In Indian Constitution, there is an express provision for JR and, thus,

it is more on a solid footing than in US.  Patanjali Shastri, CJ in State of Madras v. V.G.

Row, said, “Our Constitution contains express provisions for JR of legislation as to its

conformity with it unlike in the US where the SC has assumed extensive powers of

reviewing legislative acts under the cover of widely interpreted ‘due process clause’”.

But even in the absence of the provision for JR, the Courts would hv bn able to

invalidate a law which contravenes any constitutional provision as the power of JR

follows from the very nature of constitutional law.  In A.K. Gopalan v. State of Madras,

Kania, CJ pointed out that it was only by way of abundant caution that the framers of

our Constitution inserted the specific provisions in Art. 13.  In India, it is the Constitution

that is supreme & that a statute law to be valid must be in all conformity with the

constitutional requirements & it is for the judiciary to decide whether any enactment is

Under the power of JR, the Courts can test all pre-Constitution & post-Constitution or

future laws & declare them unconstitutional in case they contravene any of the

provisions of Part III of the Constitution.  In Kesavanand Bharti’s case, SC held that

since JR is the basic feature of Indian Constitution, it cannot be damaged or destroyed

by amending the Constitution u/Art. 368.

JR of Pardoning Power of the President u/Art.72 & the Governor u/Art. 161 :

Pardon is an act of grace.  It cannot be demanded as a matter of right.  A pardon not

only removes the punishment, but also places the offender in the same position as if he

had never committed the offence.  A pardon may be absolute or conditional.  A pardon

is conditional where it does not become operative until the grantee has performed some

specified act or where it becomes void when some specified event happens.  This

power can be exercised only to reduce & not to enhance the sentence.

Executive clemency is a matter of discretion and yet subject to certain standards.  It is

not a matter of privilege.  It is a matter of performance of official duty.  It is vested in the

President / Governor not for the benefit of the convict, but also for the welfare of the

people.  Therefore, this discretion has to be exercised on public considerations alone.

In Maru Ram v. UOI, the SC observed that the power of pardon, commutation & release

u/Art. 72 of the President’s (also u/Art. 161 of the Governor’s) can’t run riot & must keep

sensibly to a steady course and that the public power shall never be exercisable

In Kehar Singh v. UOI, the SC, while agreeing with Maru Ram’s case, reiterated that the

question as to the area of the President’s power u/Art. 72 falls clearly within the judicial

domain & can be examined by the Courts by way of JR.  However, it may not be

possible to lay down any precise, clearly defined, specific & sufficiently channelized

guidelines as the power u/Art. 72 is of the widest amplitude.  Held, Kehar Singh had no

right to be given personal hearing by the President as the Presidential power u/Art. 72 is

beyond JR except the cases when it is exercised mala fide or arbitrarily.  The Courts

need not spell out the specific guidelines for the exercise of the power.  The President

can’t be asked to give reasons for orders.  Since the power of pardon is part of the

constitutional scheme, it cannot be judicially reviewed on its merits.

In Swaran Singh v. State of U.P., the SC relying on the law laid down in the above two

cases (though these two cases didn’t call for judicial intervention), invalidated the

remission of sentence by the Governor of U.P. because some material facts were not

brought to the knowledge of the Governor u/Art. 161.  Rejecting the argument that the

Governor’s action u/Art. 161 is beyond judicial scrutiny, the SC held that if such power

was exercised arbitrarily, mala fide or in absolute disregard to the canons of

constitutionalism, the order cannot get the approval of law & in such a case, the judicial

hand must be stretched to it.  Thus, the exercise of President’s power u/Art. 72 as also

of the Governor u/Art. 161 is subject to JR.

In Epuru Sudhakar v. Govt. of Andhra Pradesh, a Congress worker was convicted for

the murder of a worker of Telgu Desham & he was awarded death sentence, but the

Governor granted pardon, the SC held that the pardoning power is open to JR on

limited grounds like non-application of mind, mala fide, arbitrariness, irrelevant

considerations, etc.  Absence of application to convey reasons does not mean that

there should not be reasons.  It is important to bear in mind that every aspect of the

exercise of pardon power does not fall in the judicial domain.  However, a pardon

obtained by fraud or granted by mistake or for improper reasons (on political grounds as

 INDEPENDENCE OF JUDICIARY :

Only an impartial & independent judiciary can protect the rights of the individual &

provide equal justice without fear or favour.  It should be free from political pressure.

The Constitution has made several provisions to ensure IoJ.

Security of Tenure : The judges of the SC & HCs have security of tenure.  They can’t be

removed from office except by an order of the President & that can also only on the

ground of proved misbehaviour or incapacity supported by a resolution adopted by a

majority of total membership of each House & also by a majority of not less than 2/3rd of

the members of the House present & voting (Art.124(4) & 218).  However, Parliament

may regulate the procedure for presentation of the address, investigation & proof of the

misbehaviour or incapacity of a judge (Art.124(5) & 218).  But it can’t misuse this power

because special procedure for this removal must be followed.

Fixed Salary : The salaries & allowance of judges of the Courts are fixed by the

Constitution & charged on the Consolidated Fund of India (Art. 125 & 221).  They are

not subject to vote of legislature.  During the term of their office, their salaries &

allowance can’t be altered to their disadvantage except in grave financial emergency.

Jurisdiction : Parliament may change pecuniary limit for appeals to the SC in civil cases,

enhance the appellate jurisdiction of the SC, confer supplementary power u/Art. 139 to

enable it to work more effectively, confer power u/Art. 140 to issue direction, order or

writ including all the prerogative writs for any purpose other than those mentioned in Art.

32/226.  All these provisions are that the Parliament can exceed, but can’t curtail the

jurisdiction & power of the SC (Art. 138 & 230).

No Discussion : Neither in Parliament nor in a State Legislature, a discussion can take

place with respect to the conduct of a judge of the SC in discharge of his duties (Art.

Power to Punish for Contempt : The SC & the HCs have power to punish any person for

its contempt (Art. 129 & 215).  This power is very essential from maintaining the

impartiality & independence of the judiciary.

Separation of Judiciary from Executive : Art. 50 directs the State to take steps to

separate the Judiciary from the Executive in the public services of the State.  It

emphasises the need of securing Judiciary from the interference by Executive.

Prohibition on Practice after Retirement : Art. 124(7) prohibits a retd. Judge of SC to

appear & plead in/before any court / authority within the territory of India & Judge of HC,

Appointment : The Constitution doesn’t leave the appointment of judges of the SC &

HCs to the unguided discretion of the Executive, who is required to consult judges of the

SC and HCs in the matter of appointment (Art. 124(2) & 224).  IoJ is emphasized by

Art. 229 which provides that appointment of Officers & servants shall be made by the

CJ or such other Judge or Officers as he may appoint.

Although judges are appointed by the Executive in consultation with legal experts, it was

held in S.P. Gupta v. UOI by the SC that the word ‘consultation’ didn’t mean

concurrence by the judges.  Thus, the power of appointment of judges of the SC & the

transfer of judges of the HCs was only vested in the Executive from whose dominance

the judiciary is expected to be free.  By conceding the power of appointment exclusively

to the Executive, the SC had itself put the IoJ into danger.  Bhagwati, J. had suggested

for establishment of a Judicial Commission for recommending the names of the persons

for appointment as judges of the SC & HCs.  Secondly, the power of the President

u/Art. 222 to transfer a judge from one HC to another may also be used to undermine

In S.C. Advocates-on-Record Association v. UOI, SC by 7 : 2 majority overruled S.P.

Gupta’s case & held that the opinion of the CJI must be given the greatest weight in the

selection of judges of the SC & HCs & the transfer of HC judges.  The executive

element in appointment process is reduced to minimum & any political influence is

eliminated.  Initiation of the proposal for appointment as judges must be started well in

time & the appointment should be duly announced soon.  No appointment of any judge

to the SC or any HC can be made unless it is in conformity with the opinion of the CJI.

The opinion of the CJI has not mere primacy, but is determinative in the matter transfer

of judges & CJs of the HCs.  The criterion for the appointment of the CJI shall be

seniority.  This ruling of the SC ensured independence & impartiality of judiciary in India.

In Union of India v. Pratibha Bannerjea, the SC held that judges & officials of the HCs

are not govt. servants.  There is no master-servant relationship b/w them.  The framers

of the Indian Constitution were evidently keen to ensure that the judiciary was

In Re. Special / Presidential Reference No. 1 of 1998, popularly known as ‘Transfer of

Judges Case – III’ 9–Judges of the SC unanimously held that the recommendations

made by the CJI on the appointment of judges of the SC without following the

consultative process are not binding on the Govt.  While widening the scope of CJI’s

consultative process, the SC gave its opinion whether the Govt. was bound by the

recommendations of the CJI sent to it without consulting his two senior-most

colleagues.  The Apex Court held that CJI must consult a Collegium of 4 senior-most

Judges of the SC & made it clear that if 2 Judges give adverse opinion, CJI should not

send the recommendation to the President.  The Collegium should make the decision in

consensus & unless the opinion of the Collegium is in conformity with that of the CJI, no

recommendation is to be made.  In effect, the CJI & at least 3 or the 4 senior-most

The aforesaid decision of the SC, though affirmed the law laid down in Second Judges’

Case (S.C. Advocates-on-Record Association v. UOI), has made the consultative

process more democratic & transparent.  This would ensure the independence &

impartiality of the judiciary of India.  However, as a result of the above decision as well

as the Second Judges’ Case, Art. 124 has been made redundant.  These cases have

vested the power of appointment of judges of higher judiciary completely in the SC.  {

This is not a satisfactory position.  The process might not be transparent in this case

also. The Broad consensus appears to be on the appointment of a National Judicial

Commission, that would balance both sides – the executive & the judiciary in this

An independent judiciary is the sine qua non of a vibrant democratic system.  Only an

impartial & independent judiciary can stand as a bulwark for the protection of individuals

& meet out even-handed justice without fear or favour.  The judiciary is the protector of

the Constitution and as such it may have to strike down executive, administrative &

legislative acts of the Centre & States.  For rule of law to prevail, IoJ is of prime

necessity.  It is necessary that the Courts are allowed to work in an atmosphere of

independence of action & judgments and is insulated from all kinds of pressure –

Opinion given by the SC in Re. Special / Presidential Reference No. 1 of 1998,

popularly known as ‘Transfer of Judges Case – III’ :

(i) The expression ‘consultation with the CJI’ in Art. 217(1) & 222(1) requires

consultation of judges in the formation of the opinion of CJI.  The sole individual

opinion of the CJI does not constitute consultation.

(ii) The transfer of puisne judges is judicially reviewable only to the extent that

recommendation has not been made in consultation with 4 senior-most judges of

the SC or that the views of the CJ of the HC from which the transfer is to be

effected & to which the transfer is to be effected have not been obtained.

(iii) So far as appointment to the HC is concerned, the recommendation must be

made in consultation with 2 senior-most puisne judges of the SC & u/Art. 217(1),

the Governor of the State is also to be consulted.

(iv) The CJI is not entitled to act solely in his individual capacity without consultation

with other judges of the SC in respect of materials & information conveyed by the

GOI for non-appointment of a judge recommended for appointment.

(v) The requirement of consultation by the CJI with the colleagues, who are likely to

be conversant with the affairs of the HC concerned includes judges who hv

occupied the office of a judge or CJ of that HC on transfer.

(vi) Strong cogent reasons do not have to be recorded as justification for departure

from the order of seniority in respect of each senior judge who has been passed

over.  What has to be recorded is the positive reason for the recommendation.

(vii) The views of the other judges consulted should be in writing & should be

conveyed to the GOI by the CJI along with his views to the extent set out in the

(viii) The CJI is obliged to comply with the norms & requirements of the consultation

process as aforesaid in making the recommendation to the GOI.

(ix) The recommendations made by the CJI, without complying with the norms &

requirements of the consultation process as aforesaid, are not binding upon the go.

DEPENDENCY THEORIES OF JUSTICES

II) DEPENDENCY THEORIES OF JUSTICES

This theory may be discussed under two heads, viz.:

1. The dependence of justice on law; and

2. The dependence of justice on society.

The dependence of justice on law

According to the positive law theory of justice, the justice and injustice are

dependent on positive law.  The proposition that justice depends on law is

defended by Hobbes and he describes what conditions would be like in a situation

where no law existed.  In such a situation there would be no common power, no

organized society capable of issuing commands and enforcing them, and men

would live in what he calls “the state of nature”.  Where there are no social rules,

men would oppose each other only as individuals and men as individuals seek

their own advantage they are enthusiastic for gain, safety and reputation.  But men

are so equal in power that no one enjoys a clear advantage, also no one is safe or

secure, the life of all is “solitary, poor, nasty, brutish and short”.  Hence, the state

or nature amounts to a state of war, and such a war is of every man against every

man.

In the state of nature, there is no common power able to make laws and

enforce them.  There is also no justice or injustice.  Hobbes writes that before the

names of just and unjust can have place, there must be some coercive power to

compel men equally tome performance of their covenants.

The dependence of justice upon the existence of a superior is supported by

this counterfactual argument: “If we could suppose a great multitude of men to

consent in the observation of justice without a common power to keep them all in

awe, we might as well suppose all mankind to do the same; and then there neither

would be nor need to be any civil government or common wealth at all.”

What is wanting is a common power.  This is obtained through the

establishment of a commonwealth, or a civil society or state and which Hobbes

calls “Leviathan”, to emphasize the power.  This leviathan comes into being b the

social contract, or the common agreement of men to abandon the sate of nature.

According to Hobbes, there is a “covenant of every man with every man in such a

manner as if every man should say to every man, “ I authorize and give up my

right of governing myself to this man or to this assembly of men, on this condition

that you give up your right to him and authorize all his actions in like manner”.

There is coercive power to compel men equally to the performance of their

covenants and hence occasion for justice.

Without a superior coercive power there is not only no ground for private

contract, there is also no ground, strictly speaking, for property.  According to

Hobbes, every man has right to everything.  But this is tantamount to having no

rights at all.  Hence, there is no basis on which a man can claim anything as his

own by right.  There is no mine and thine, no property, all men having right to all

things.  Therefore, where there is no common wealth, there is nothing unjust.

If we think of men existing in a condition where they are utterly without

law, than there can be no question of justice or injustice.  In other words, justice

and injustice depend upon law, and hence are the work of civil society and

relative to it.  Without society there is no justice.  In different ideas of justices.

According to Kelsen, the basic norm of a society determines what is just and

unjust.  A man is if his behavior conforms to the norms of a social order.  But

every society believes that its order is just.  Justice is relative to a given society

and to the kind of constitution it had.   A democratic society has democratic

justice and a communist society has communist justice.

THE DEPENDENCE OF JUSTICE ON SOCIETY.

According to Social Good Theory of Justice, justice and injustice are not

exclusively dependent on positive law.  The Social Good Theory disagrees with

Positive Law and agrees with the Natural Right Theory.  The heart of Social Good

Theory lies in the claim that all questions of justice must ultimately be decided in

terms of social utility.  All theories agree that justice is a social norm that applies

to men in their relations with one another.  The Social Goods Theory goes still

further and asserts that origin and basis of justice lies in the good society, i.e., in a

good greater than and individual or private good.  Social Good authors may differ

about the social good and its determination, but all would agree that what is just is

ultimately decided only by determining what is good for society and whenever a

course of action runs counter to that good, it is unjust.  There is no law, no right

that falls outside these criteria.  All laws and rights are just or unjust as they

conform to the Social Good and promote it.  Justice as a norm tests ultimately

upon the Social Good.

According to the Social Good Theory, justice is based entirely on society.

It arises in the course of men striving to work out a common life, and, if it were

possible for men to live apart from society, there would be no justice and no

morality at all.  It is evolved by them through their efforts to meet the demands of

living together.  It maintains that society is logically prior to law as well as

justice.  The theory holds that, while it may make sense to speak of justice where

there is no organized government and no positive law, justice makes of sense

apart from the good of society.  This theory places emphasis upon the social

situation of man and its needs and not upon man as such in any social situation.

An individual is in no way naturally just.  He is made lust by and in society and

all the rights and rules of justice are entirely made by and conferred by society.

Followers of Social Good Theory assert the dependence of justice upon

society in different ways.  According to Flume, justice is an “artificial virtue”.

Unlike benevolence or the feeling of sympathy we have for our fellowmen justice

is not a ‘simple original instinct’ or an ‘innate idea’ or an ‘instinct originally

implanted in our nature’.  So flume claims that justice is an ‘artificial’ and not a

‘natural virtue’.

Mill accomplishes the same purpose by tracing the origin of justice to a

social feeling.  He says that there are two essential ingredients in the sentiment of

justice, the desire to punish a person who has done harm, and the knowledge or

belief that there is some definite individual or individuals to whom harm has been

done.

Sidwick claims that natural right provides no stands for man’s social

relations.  He asserts that justice is held to prescribe the fulfillment of all such

expectations as arise naturally and normally out or relations voluntary or

involuntary amongst human beings.

According to Roscoe Pound, justice is not an individual virtue, nor an

ideal relation among men, but such an adjustment of relations and ordering of

conduct as will make the goods of existence go round as far as possible with the

least friction and waste.

The assertion that justice is entirely dependent on society carries the denial

that there is any such thing as a natural right having its basis in man as man.  The

Social Good Theory thus denies that nature or the natural as such provides a basis

of justice.

Individual liberty may be claimed as a requirement of justice by any of the

three basic theories.  They differ not in the claim but in the reason they offer for

it.  The Social Good position makes it need of society, or a means for insuring a

better society.  The positive law theory holds that it is an option that has been

written into law, while the Natural Right Theory maintains that it is a right due to

man as man.

CONCEPT OF JUSTICE

UNIT – IV

CONCEPT OF JUSTICE

The cardinal question as to what is justice is difficult to define.  The jurists are

confronted with the problem of offering a precise definition of the term ‘justice’ on

account of three essential difficulties.

First,  the term ‘justice’ is assigned different meaning by different people at

different times and different places.  Not only this, its implications vary from man to man

on account of their varying interpretations.

Second, the idea of justice is a dynamic affair.  As such, implications change with

the passage of time.  Thus, what was justice in the past may be injustice in the present

and vice versa; it is also possible that the justice of today becomes injustice of tomorrow

and vice versa.

Third, a further difficulty arises in reconciling the abstract notion of justice with

its practical manifestations.  For instance, one may talk of divine justice or moral justice,

but it will not be comfortable to any set of standards, and for this reason not capable of

practical application.

Here it is pertinent to quote Harold Potter, “most men think that they understand

the meaning of justice, but in fact, their notions prove to be vogue”.

Arnold Breacht writes that while dealing with the problem of offering a precise

definition of the term ‘justice’, we should keep this paramount fact in our mind that ‘not

only do different individuals hold various ideas about the ideal state of affairs, they

would consider really just every individual is capable of several such ideas.  Our ideas

and feelings of justice may be two fold or three fold or even more fold in accordance with

different systems of values to which we respond positively at different times, or even

simultaneously.  Justice in the light of personal ideas is, or at least may be, a barrel with

several bottoms.  In order to solve this predicament; Arnold Brecht divides justice into

two categories:-

1. Traditional justice – it accepts the fundamental institutions, which constitute

the basis of our daily life.  In so far as these institutions have been established

by the positive law (written constitution, legislation, judicial precedents and

the like), the traditional idea of justice  is positivistic.

2. Trans justice – it detaches itself from the existing institutions, either in whole

or in part, and criticizes them according to principles which are taken from a

trans-traditional scheme or evaluation.  This may again be done in dependence

on group ideas that are accepted and carried on by the individual in some

condition of submission or example ideas of a party or merely in deference to

the opinions of a strong personality, a friend, the husband or wife, or the

priest.

The problem of the meaning of justice is notorious for its treachery.  In fact, it is difficult

to imagine a man who has not at one time or the other discussed whether a given course

of action is  just or not.  Grammatically, the word ‘justice’ has been used as adjective,

adverb, noun, verb or auxiliary in compounds with other words.  The varied use of the

word ‘justice’ has made it a subject of extensive controversy.

Karl Popper declares that word ‘justice’ is used in various senses and to ask for its

meaning is to raise an ‘important verbal question to which no definite answer can be

given’.  In general parlance the term ‘justice’ is synonymous with the term ‘fair play’,

‘just’, ‘right’, ‘proper’, ‘sound’, ‘just’ and ‘reasonable’ and ‘ natural justice’.

The term ‘Justice’ has two aspects, namely, abstract justice and concrete justice.  In the

abstract sense, justice means a course of conduct both legal and oral which tends to

augment the human welfare and human happiness.  In its absolute terms, it is a standard

according to which the other values of life  are judged and weighed.  Whereas concrete

justice is a term which is purely legal in its contents and used to define justice available

in courts of law.  The term connotes the actual justice which is available to the members

of the society in a given set of social order bound by limits set in by legislative

enactments.

The term ‘justice’,  therefore, is a highly elastic term and any attempt to lay down a

definition which may be true in all times is a difficult task.  What we are seeking: is the

justice to which law in the making should conform.  The concept of justice in that sense

is far more ‘subtle and indefinite than…mere obedience of a rule’.

The jurists of positive law theory of justice hold that question of justice arises only in

connection with law and that law is not independent of justice.  The position of positive

law theory regarding the nature of justice is characterized by six propositions:-

(i) Justice and injustices are dependent on positive law;

(ii) Law itself is independent of justice;

(iii) Justice consists in conformity to positive law;

(iv) Justice apart from legality, is merely a subjective norm;

(v) Justice is obligatory ultimately only because of legal and political

(vi) The virtue of justice is identical with obedience.

The Social Good theory of justice is identified by the following six propositions, namely,

1. Justice and injustices are not exclusively dependent on positive law;

2. Justice provides a criterion for the goodness of a law;

3. Justice derives exclusively from society and consists ultimately in promoting the

social good;

4. Justice is an objective norm for human actins;

5. Justice imposes a moral duty based on the social good and is not primarily

dependent on legal sanctions and

6. Justice is a distinct virtue, disposing on to act for the social good and is similar to

benevolence.

John Rawls finds it useful to analyze justice in terms of an explicit contract.  He claims to

drive two fundamental principles of justice (i) Each person participating in the political

and social system or affected by it has an equal right to the most extensive liberty

compatible with a like liberty for all; and (ii) inequalities (as defined and permitted by the

pattern of distribution of rights and duties) are arbitrary unless it is reasonable to expect

that they will work out for every ones advantage and provided that the positions and

offices to which they attach or from which they may be gained, are open to all.  John

Rawls gives importance to distinction between justice and fairness.  According to him,

the “primary subject of justice is the basic structure of society”.

Thus, justice is a large subject with many topics and sub-topics that have vast range

of significance.  With so many diverse and divergent uses it is no cause for wonder that

justice has become a subject of extensive controversy.  It is not justice itself but theories

about justice that constitutes the object of investigation.

Justice is a social norm.  It is relational as involving many, it applies to man in

association, and it is norm for regulating their actions towards each other.  Justice is

probative.  Society has more than one norm.  There are norms of manners, of decency, of

taste, of grammar, each of which provides a rule or guide for men in their association

with one another.  Justice is obligatory.  All the theories of justice agree that justice

sanctions; and

involves in some way a norm or standard of what ought to be done.  However, they differ

about the nature and ground of the norm and how and why it obliges. But none deny that

justice imposes an obligation. Thus under the diversity of language, it is clear that each is

asserting that justice is a social norm that is both approbative and obligatory.

RELATION BETWEEN LAW AND JUSTICE

As it is difficult to define justice in absolute terms, so is difficult to say whether there can

be justice without law?  John Salmond defined justice in terms of established legal rules

and procedure.  Justice as such cannot be achieved without or outside the rules of law,

rather it can be achieved only within the four walls of law.  Salmond further says that the

purpose of law is to secure justice according to the law of the land.  In other words, the

phrase ‘justice’ according to law’ is used by him in the sense that decisions of the courts

of law with respect to disputes should be based on legal principles and the judges should

apply established rules and principles of law in the administration of justice.  Mat on the

country, says that justice can be administered without law.  He says all that the judge

requires is authority to settle all disputes that come before him.  It means judges can

decide a dispute without law but according to their hunches discretion or whims

irrespective of the merits of the situation.  However, this type of justice cannot be

described legal justice but may be called as executive justice or flat or arbitrary justice.

Every legal system is oriented towards certain purposes which it seeks to

implement in this sense, every legal system is of necessity devoid of ideological content.

The ‘justice’ of a given legal system may be a laissez faire economy or the public

ownership of all product enterprise, it may be a Parliamentary multiparty system of a

one-party state, the systems may be built upon the ideology of separation of powers or on

the subordination of administration and the judiciary to the will of the legislator.  It may

aspire to be equality of all citizens, or to a hierarchical structure of superior arid inferior

citizens; it may implement the supremacy of international over national law of the

inverse.  According to Aristotle, the definition of distribute justice means ‘injustice arises

when equals are treated unequally, and also when unequal are treated equally”.  It is

compatible with legal system that discriminate between free man and slaves, between

blacks and whites, between nationals and foreigners between rich and poor, between men

and women.  For all of these are “class concepts” groups which the legal order may

consider as being equal or unequal in relation to each other.  There is a procedural

residuum in the notion of a “equality for equals” which makes it more than a meaningless

formula.  It implies a minimum machinery of justice, some procedure for the

determination of treatment as equal or unequal in a particular case.  This carries the

implication of a third party procedure and thus some minimum concept of “due process”.

Perelman in his “Idea of Justice” has demonstrated that the only factor common to

various conceptions of justice was “formal justice”. This consists in equality of treatment

for all the members of one and the same essential category.  The only requirement is that

it should not be arbitrary but should just itself should flow from a normative system.  But,

the only claim one could rightfully make would consist in eliminating, arbitrary save

what is implied in affirming the values at the base of the system.   This approach is

similar to Aristotle’s concept of distributive justice and to the philosophy of relativism as

developed by Max Weber, Gustav, Radburck, Kelsen and others.

Thus, “justice” as a generally valid concept is formal in the sense that it is the

goal to which every legal order aspires as a “purposeful enterprise” and procedural in the

sense that the Aristotellian notion of “equity for equals’  implies a minimum machinery

of justice and third party determination.

Thus, law may be regarded as consisting partly of legal phenomena and partly of

legal norms in mutual correlation.  Observing the law as it functions in a society, a large

number of human actions are interpreted as a coherent whole of meaning and motivation

by means of legal norms as the scheme of interpretation.  The concept “valid law” can be

explained and defined in principle in the same manner as the concept “valid norms” in

any game.  Thus, “valid law” means the abstract set of normative ideas which serve as a

scheme of interpretation for the phenomena of law in action, which again means that

these norms are effectively foil and followed because they are experienced and felt to be

society binding.

…

An essay on “Law, women and social change.”

Q. Write an essay on “Law, women and social change.”

Introduction:- In the vedic period women participated in every sphere of human life and enjoyed a fair

amount of freedom and equality with men.  In the post-vedic period various restrictions were put on

women’s rights by Manu and status of women suffered a set back.  The Mughal period and the

subsequent advent of the British period were marked for general practice of killing baby girls,

condemnation of widow, polygamy and system of Devadasis in different parts of India.

Due to education and western impact on the socio-cultural life of attitude, the behavior and living

pattern of Hindu society changed drastically during the British regime.  Injustice on women was

highlighted by Dada Naroji, Swami Dayanand Saraswati, Raja Rammohan Rao and Annie Besant, Sarojini

Naidu etc.

Women Mythology:- Women is divine, holy and pure and worshiped in India as Devi. Brahma is suppoed

to be half male and half female “purusha’ and “prakriti’.  When “prakriti” conjoins “purusha” , it results

in creation.  Women is thus seen as the yield or earth in which man sows the seed.  Woman is

considered symbolizing with Goddess Lakshmi, Sarasvati and Durga.  Without women the men is

considered incomplete.

Women in pre-Islamic society:- In pre-Islamic society, the position of woman was considerably low.  The

woman had no rights.  A man was free to have as many wives as he likes.  The Holy ‘Prophet’ gave a

definite status to woman in the society as a mother, daughter and as a sister.  He made a ceiling to the

number of wives a man could have.  However, the husband was free to give divorce to a woman at any

time at his will.  The Muslim woman’s rights were under subjugation.

Woman in Christianity:- The Book of Genesis, status that God made man as male and female.  So no

differentiation in rights or status is required.  God said, “it is not good that men should be alone.  I will

make him a help mate”.  So he created woman as the help-mate of Adam which brings out the fact that

woman is companion of man.  Her status and role were conferred by God himself to be companion and

wife to man and mother of all the living things of the world.  Her role increased her status in the society.

However, the Indian Christian woman brought up under the prevailing religions and socio-cultural

patterns has lived in the false security of the male dominated church and church related institutions.

Women in Sikhism:- The Sikh doctrine brought revolutionary change in the status of woman and they

fully participated in “Sangat” and “Pangat” established by Guru Nanak.  The practice of Sati has been

condemned.  The purdah, veiling of woman’s face was eradicated.  The practice of female infanticide

was forbidden. Thus, the status of woman rose highly and they started working with men shoulder to

shoulder in the new society.

Women in Jainism:-Anna has no division of male or female.  Woman in particular has a unique position

as Jana Matha, the woman who have birth to Thirthankara, the Jain deity.  She has the highest position

as the mother of the nature.  History is full of names of Jain women who did a lot for society and their

religion.  Though the Jain women have shown greatness in almost all the fields of social life and brought

glory to humanity, they were still responsible for the continuation of Sati practice.  This system

symbolizing the authority of men has coincided with the sense of sacrifice.

Women in Buddhism:- Buddhism nuns gave women an opportunity for spiritual practice and

enfoldment.  Women’s role as mother commanded veneratin, but society generally expected her to give

birth to a son, so that he could perform rituals for the salvation of his ancestors.  The most ordeal pair

preferred by Budha was Nakula-Pita and Nakula Mata.

Basic Right of Women:- The law framers were often and are concerned with the basic right of woman.

The Universal Declaration of Human Rights and so also our constitution do reflect such concern.  Article

14 of the Constitution-equality before law and equal protection of laws .  Article 15 forbids

discrimination on rounds of sex etc.  Article 16 provides for equality of opportunity in matters of public

employment. Article 23 prohibits trafficking in human beings.  The Supreme Court in Rajesh Kumar

Gupta vs. State of Uttar Pradesh, AIR 2005 SC 2540 has held that reservation of 50% of posts in favour of

female candidates not arbitrary.  Similary, provisions providing for reservation of seats for women in

local bodies or in educational institutions are valid.  In Vishakha vs. State of Rajasthan, AIR 1997 SC 3011,

the Supreme Court held that sexual harassment of working women amounts to violation of the rights

guaranteed by articles 14, 15 and 23.

Specific provisions have been made in the Indian Penal Code to deal with the offence of rape,

sexual assault(Section 375-376, offences relating to marriage, cruelty by husband or relatives of

husband(section 493 to 498-A), offence of miscarriage (sections 312 to 318); outraging the modesty of a

woman (section 509) and provision for dowry death has been made in section 304  of IPC.  Specific

provisions have been made for the offence of bigamy, desertion, mental illness, insanity; physical

diseases, incurability of unsound mind, kidnapping and abduction, obscenity, outraging the modesty of a

woman, procurement of minor girl and slavery etc in the Penal Code and the Constitution.

There is specific legislation dealing with dowry viz. Dowry Prohibition Act, 1961, the Commission

of Sati(Prevention) Act, 1987, the Maternity Benefit Act, 1961 and Equal Remuneration Act, 1916,

Immoral Traffic(Prevention) Act, 1956 to curb prostitution etc.

The National Commission for Women Act, 1990  was enacted for the welfare of the women and for

enforcing their rights which works as a watchdog for the rights of women.

As a result of these legislations, the position of women in the modern times has gradually

improved and the women is enjoying equal rights in every sphere of life.  Now the time has come when

the attitude of  the society must change towards women and their rights.

RESPONSES OF LAW TO SOCIAL INSTITUTIONS I. RESPONSES OF LAW TO RELIGION:-

IV) RESPONSES OF LAW TO SOCIAL INSTITUTIONS
I. RESPONSES OF LAW TO RELIGION:-

Secularism or a Secular State means “a State which does not recognize any religion as State

religion, but treats all religions equally”.  The Supreme Court explained secularism as “the State shall

have no religion of its own and all persons of the country shall be equally entitled to the freedom of

their conscience and have the right freely to profess, practice and propagate any religion”.

Secularism and Constitution of India:- The word ‘secular’ was inserted into the preamble of the

Constitution by 42nd Constitutional Amendment Act, 1976, but the concept of secularism was already

implicit in the Constitution in granting “liberty of…belief, faith and worship through the preamble”.

The Supreme Court has observed that “although the words  ‘secular State’ are not expressly

mentioned in the Constitution, but there can be no doubt that Constitution makers wanted to establish

such a State and accordingly Articles 25 to 28 have been included in the Constitution which guarantees

Freedom of Religion.

No discrimination on the basis of religion:- Article 14 guarantees equality before law and provides that

the State shall not discriminate against any person on the ground of religion.  Article 15 prohibits

discrimination on grounds of religion, race, case, sex or place of birth.  Article 16 provides for equality of

opportunity in matters of public employment.  Article 17 provides for abolition of untouchability.

Promoting enmity between different groups is specific offence:- Section 153A was inserted in the IPC

which lists all the offencive acts, lust like a divisible factor throughout India, promoting enmity between

different groups on gro9unds of religion, race, place of birth, residence, language etc., and doing acts

prejudical to maintenance of harmony.  The object of adding this section in the IPC was to prevent racial

and sectarian quarrels entailing the public peace.

Promoting hatred or ill will disharmony affecting the enmity:- It is not necessary to prove a resut of the

objectionable matter, enmity or hatred was in fact caused between the different classes.  Intention to

promote enmity or hatred apart from the writing itself, is not a necessary ingredient of the offence.  It is

enough to show that the language of the writing is of a nature calculated to promote feelings of enmity

or hatred.

Uniform civil code:-  The Supreme Court in Shah Bano’s case has observed that there should be a

Uniform Civil Code to govern different religions.

II. LANGUAGE AND LAW:- The Constitution guarantees to its all citizens to speak any language and run

any institution on the basis of language but the State will not discriminate on the basis of language and

it can be aided by the State.

1. Fundamental rights of linguistic:-

Right to conserve distinct language:-  Article 29(1) provides that any section of the citizens residing in

the territory of India or any part thereof having a distinct language, script or culture of its own shall have

the right to conserve the same.

Right of minorities to establish and administer educational institutions:- Article 30(1) provides that all

minorities, whether based on religion or language, shall have the right to establish and administer

educational institutions of their choice.   Article 30(2) provides that the State shall not, in granting aid to

educational institutions, discriminate against any educational institution on the ground that it is under

the management of a minority whether based on religion or language.

2. Language to be used in Parliament and Legislature:-

Language to be used in Parliament: Article 120 provides that business in Parliament shall be transacted

in Hindi or in English.  But, the Chairman of the council of States or Speaker of the House of the People

may permit any member who cannot adequately express himself in Hindi or in English to address the

House in his mother tongue.

Language to be used in the Legislature:- Article 210 provides that the business in the Legislature of a

Stae shallbe transacted in the official language or languages of the State or in Hindi or in English.  The

Speaker of the Legislative Assembly or Chairman of the Legislative Council may permit any member who

cannot adequately express himself in any of the languages aforesaid to address the House in his mother

tongue.

3. Language of the Union:-

Article 343 provides for the official language of the Union.  It states that the official language of

the Union shall be Hindi in Devanagari script. The form of numerals to be used for the official

purposes of the Union shall be the international form of Indian numerals.  Further, it provides that

for a period of 15 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.

The President may, during the said period, authorize the use of the Hindi language in addition to

English.  The Parliament may

Commission and Committee of Parliament on Official Language:-  Article 344 provides for

constitution of Commission and Committee of Parliament on Official Language. It shall be the duty

of the Commission to make recommendation to the President as to the progressive use of the Hindi

language for the official purposes of the Union etc.

It shall be the duty of the Committee of Parliament on Official Language to examine the

recommendations of the Commission and to report to the President their opinion thereon.

4. Regional languages:-

Official language or languages of a State:- Article 345 states that subject to the provisions of Arts.

346  and 347, 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 or languages to be used for all or any of the official purposes of

that State.  Until the Legislature of the State otherwise provides by law, the English language shall

continue to be used for those official purposes.

Official language for communication between one State and another or between a State and the

Union: - Article 346 states that the language for the time being authorized for use in the Union for

official purposes shall be the official language for communication between one State and another

State and between a State and the Union.  If 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 communication.

The Official Language Act, 1963 provides that for the purpose of the communication between

Union and the non-Hindi States, English shall be used and where Hindi is used, such communication

shall be accompanied by English.

Special provision relating to language spoken by a section of the population of a State:- Article

347 states that on a demand being made in that behalf the President may, if he is satisfied that a

substantial proportion of the population of a State desires the use of any language spoken by them

to be recognized throughout that State or any part thereof for such purpose as he may specify.

5. Language of the Supreme Court, High Court etc.: Article 348 provides that until Parliament by

law otherwise provides all proceedings in the Supreme Court, High Court etc shall be in English

language.

It further provides that the Governor of a State may, with the previous consent of the President

authorize the use of the Hindi language, or any other language used for any official purposes of the

State, in proceedings in the High Court having its principal seat in that State.

Special procedure for enactment of certain laws relating to language:- Article 349 states that during

the period of 15 years  from the commencement of this constitution, no Bill or amendment making

provisions for he language to be used for any of the purposes mentioned in Art. 348 shall be

introduced…except after the President has taken into consideration the recommendations of the

Commission on Official Language and the report of the Committee.

6. Special directives:- Article 350 states that every person shall be entitled to submit a

representation for the redress of any grievance to any officer or authority of the Union of a

State in any of the languages used in the Union or in the State as the case may be.

Article 350A of the Constitution provides for facilities for instruction in mother tongue at

primary stage.

Article 350B provides that there shall be a Special Officer for linguistic minorities to investigate

all matters relating to the safeguards provided for linguistic minorities under the Constitution and

report  to the President.

Article 351 provides that it shall be the duty of the Union to promote the spread of the Hindi

language, to develop it.

A harmonious reading of Article 343, 344 and 351 would show that the ultimate goal is the

spread and development of Hindi and the gradual switch over to its use for official purposes and as a

link language.

7. Authoritative text in the Hindi language:- Article 394A provides that the President shall cause to

be published under his authority (i) the translation of this Constitution in Hindi language…(ii) the

translation in Hindi of every amendment of this Constitution.

Court directive to Delhi University to publish textbooks in Hindi:- The High Court of Delhi while

entertaining a PIL directed the Delhi University to ensure availability of Hindi textbooks to its

students pursuing different courses.

8. Eighth Schedule of the Constitution: - Initially there were 15 languages recognized under Eighth
Schedule, but presently besides English, it recognizes 22 languages in India.

• III. Community and Law:-

12 ILD 486 (SC).