Draft National Youth Policy 2012: Empowering the youth of the nation by bringing holistic development

Key Features of Draft NYP 2012:-

· The Draft NYP 2012 recognizes that youth is not a homogenous group and there are numerous differentials based on their habitat, environment in which they live, socio-economic status of the families they belong to and their own lifestyle.

· The target groups identified are (i) Student Youth (ii) Migrant Youth (iii) Rural Youth (iv) Tribal Youth (v) Youth At Risk (vi) Youth in violent conflicts (vii) out of school/dropouts (viii) groups with social /moral stigma (ix) Youth in Institutional Care. Young women, Youth belonging to socially and economically disadvantaged communities /groups, and differently-abled youth form the three priority groups among the target age group.

· The Draft NYP 2012 proposes to change the target age group from the existing 13-35 years to 16-30 years. This change is proposed mainly to realign the definition of Youth with the prevailing international definitions. The definition of Youth as per UN is 15-24 years and as per Commonwealth, it is 15- 29 years.

· The concerns of target groups and the priority groups therein, shall be addressed through a subsequent action plan based on policy interventions mentioned in the thrust areas of this policy.

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India World Heritage List by UNESCO

The list of “World Heritage sites” declared by the United Nations Educational, Scientific, and Cultural Organisation (hereinafter ‘UNESCO’). The UNESCO is a specialized agency of the United Nations and inter alia its objective is to encourage the identification, protection, and preservation of cultural and natural heritage around the world considered to be of outstanding value to humanity. In pursuance of the same, the UNESCO Conference adopted the Convention concerning the Protection of the World Cultural and Natural Heritage in 1972, emphasizing the obligation of State parties to take necessary measures for the conservation and protection of world heritage properties.

Operational Guidelines for the Implementation of the World Heritage Convention

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Indira Gandhi mentioned Veer Savarkar as remarkable son of India

Prime Minister Smt Indira Gandhi wrote a Letter in favour of Veer Savarkar in 1980

By a letter addressed to Pandit Bakhle, secretary of Swatantrayaveer Savarkar Rashtriya Smarak, dated May 20, 1980, Indira Gandhi wrote, “I have received your letter of the 9th May 1980. Veer Savarkar’s daring defiance has its own important place in the annals of our freedom movement. I wish success to the plans to celebrate the birth centenary of this remarkable son of India.”

PRIME MINISTER INDIA

NO.836-PMO/80

NEW DELHI

MAY 20.1908

Dear Shri Bakle,

I have received your letter of the 8th May 1980.

Veer Savarkar`s daring defiance of the British Government has its own important place in the annul of our freedom movement. I wish success to the plans to celebrate the birth centenary of the remarkable son of India.

Yours sincerely

sd/-

Indira Gandhi

Indira Gandgi mentioned Veer Savarkar as remarkable son of India

Native Indian rulers were sovereign and they parted their sovereignty by accession and integration :SC

The native Indian rulers were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in stages, firstly on accession, then on integration and finally by what has been felicitously termed in the White Paper on Indian States as ‘unionization’ i.e., by State territory becoming part and parcel of the territory of the Union of India which meant the complete extinction of their separate existence and individual sovereignty and of their States as separate political units :

(1) There were two schools of thought as regards the effect of a change in sovereignty in respect of the enforceability of the rights of private individuals against the succeeding sovereign. At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle, that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a competent authority or organ of the succeeding sovereign recognised those rights. The passage in the judgment of Lord Dunedin in Vajesinghji’s case, (supra) was typical of this view. On the other hand, there was another and, if one might say so, an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by Chief Justice Marshall in Percheman’s case, (supra) was typical, that the proper and just rule of Public International Law which should be given effect to by municipal courts was that changes in sovereign over a territory did not or should not have any effect on the rights of the private individuals even as regard the enforceability of their claims as against the State and that it was the obligation certainly moral, if not also legal, of the succeeding sovereign to give effect to such rights previously acquired by grant from the previous sovereign. After pointing out these divergent views the learned Judges, in Virendra Singh’s case, (supra) considered it unnecessary to express their opinion as regards the correctness or acceptability of either view, but proceeded, however, on the assumption that the constitutional doctrine as enunciated by the Privy Council appealed to the facts of the case before them.

(2) Starting from the position that the petitioners obtained a good title; to the villages granted to them by the rulers of Sarila and Charkari they proceeded to analyse the nature of the title which they had under the grants. As a result of this examination they arrived at the conclusion that even on the basis of the decisions of the Privy Council, their title was only voidable at the option of the succeeding sovereign. They recognised that he changes that took place in the constitutional position of the State of Charkari and Sarila undoubtedly brought in a change in the sovereignty of that territory and hold that the changes thus brought about including the treaties which marked the transition were “Acts of State” and that the interpretation or enforcement of rights under the treaties was outside the jurisdiction of municipal courts. The petitioners, they held, could not, therefore obtain any advantage by reliance on any provision in the treaty safeguarding their rights, for apart from the treaties being “Acts of State” they were engagements between two sovereign States and enforceable between them at the instance of the high contracting parties through diplomatic channels and not by recourse to municipal courts, and the petitioners not even being parties to the treaties could not obviously claim any right to enforce them. In this connection the terms of Art. 363 of the Constitution which contained an express embargo on the enforcement by the municipal courts of the provisions of these treaties were adverted to as reinforcing this position.

(3) If guarantees contained in the treaties be put aside, the next question to be considered was whether the Governments which emerged as a result of the Constitution, were competent to avoid or repudiate the titles obtained by the petitioners under the previous ruler by an “Act of State”. They answered this question in the negative for four reasons:

(i) The Constitution emerged as a result of the conjoint action of the subject of the former Indian rulers and the people of former British India. When as a result of this joint effort the Constitution was brought into existence there was no question of conquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by conquest, cession, treaty etc.

(ii) The subjects of the former Indian rulers became, when the Constitution emerged, Indian citizens, and as against its own subjects or citizens there was no question of any “Act of State” by any Indian Government.

(iii) Even if the previous rulers had vested in them autocratic powers to revoke grants made by them in favour of their subjects, the Government of the Union and States which were functioning under a Constitution which contained fundamental rights guaranteeing protection of property rights against arbitrary executive action could not claim to exercise those arbitrary powers which they might have inherited from the previous rulers, and

(iv) The petitioners had at the commencement of the Constitution a possessory title to the property granted to them and had also a right at that date, to continue in possession unless and until their title which was voidable was extinguished by repudiation by the Governments which were established by the Constitution. These proprietary rights were, however, protected by Arts. 19(1) (g) and 31 (1) of the Constitution and so the petitioners could not be deprived of their proprietary rights except by competent legislation enacted after the commencement of the Constitution.

In Virendra Singh’s case, (supra) this Court held that even on the basis that the merger of the Indian States in the Indian Union and the treaties by which that was accomplished were acts of State, still by reason of the manner in which the Constitution of India was brought into being and because of the provisions which it contained, in particular those guaranteeing property rights of its citizens, the acquired rights of the inhabitants of the Indian State quoad their rulers could not, after the Constitution, be annulled or abrogated by arbitrary executive action on the part of the Union or State Governments. The learned Judges thus assumed as correct the rule of Public International Law relevant to that context expounded by the Privy Council in a number of decisions rendered on appeals from the Indian High Courts. For this reason we consider that it would be convenient for a proper appreciation of the points now in controversy to premise the discussion by briefly setting out the principles underlying these decisions of the Privy Council, reserving their detailed examination to a later stage. These principles have been tersely summarised and the ratio of the rule explained by Lord Dunedin in Vajesinghji v. Secretary of State for India, 51 Ind App 357 in a passage which has been often quoted in later cases on the subject and we consider that it would be sufficient if we extract it. The learned Lord said:

“When a territory is acquired by a sovereign state for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. ‘Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has though his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing.’ Nay more, even if in treaty of cession it is stipulated that certain inhabitant could enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties.” .

  1. This has been accepted as expressing the constitutional law of the United Kingdom and the same has been applied not merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire – See Cook v. Sprigg. (1899) AC 572. This was the law laid down and given effect to by the Privy Council until India attained independence.
  2. (1955) 1 SCR 415 however, struck a different note particularly as regards the matters covered by the sentence we have underlined (shown in ‘) in Lord Dunedin’s exposition of the law, and to this decision we shall immediately turn. The fact of the case were briefly these:On January 5, 1948, the ruler of Sarila granted the village Rigwara to the petitioners who moved this Court while on the 28th of January, 1948 the ruler of Charkari granted certain other villages to the same petitioners. As the rights of the petitioners were sought to be nullified by an order of the Government of Uttar Pradesh they filed a petition under Art. 32 of the Constitution praying that the order of the Government of Uttar Pradesh revoking the grants in their favour be declared void and for consequential reliefs.
  3. A few more facts in regard to the constitutional history of these two States is necessary to be stated to appreciate some of the matters which figured in the decision in Virendra Singh’s case, (supra). After the date of the grant in favour of the petitioners 35 States in Bundelkhand and Bhagalkhand, including Charkari and Sarila agreed to unite themselves into a State to be called the United State of Vindhya Pradesh. While this Union was in existence, certain officials of this Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference. Subsequently the rulers of the 35 States dissolved their Union and ceded to the Government of India Dominion all their powers and jurisdiction and the Dominion constituted the area into a Chief Commissioner’s province for the purpose of administration, but the four villages granted to the petitioners were however, detached from the centrally administered State and absorbed into Uttar Pradesh. On August 29, 1952 the Governor of Uttar Pradesh revoked the grants made in favour of the petitioners. The question before the Court was whether this order of revocation of he grants made by the former rulers was justiciable in courts and if justiciable, valid.
  4. The judgment of the Court was delivered by Bose, J. The learned Judge after stating the question arising for decision as being “whether the Union Government had the right and the power to revoke these grants as an act of State ?”, pointed out that jurists had held divergent views on this matter. At one extreme, he said, was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited. At the other extreme was the view of the Marshal, C. J., in United States v. Percheman, (1831-34) 7 Pet 51 at pages 86-87 from which he quoted the following:

“It may not be unworthy of remark that it is very unusual, even in case of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be out raged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory ? …… A cession of territory is never understood to be a cession of the property belonging to the inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, conveying the compound idea the surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property.” After referring to a few other decisions of the English Courts the learned Judge proceeded:

“We do not intend to discuss any of this because, in our opinion, none of these decisions has any bearing on the problem which confronts us, namely, the impact of the Constitution on the peoples and territories which joined the Indian Union and brought the Constitution into being **

Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of state into whose competency no municipal court could enquire; nor any Court in India, after the Constitution, accept jurisdiction to settle any dispute arising out of them because of Article 363 and the proviso to Article 131; all they can do is to register the fact of accession …… But what then; Whether the Privy Council view is correct or that put forward by Chief Justice Marshall in its broadest outlines is more proper, all authorities are agreed that it is within the competence of the new sovereign to accord recognition to existing rights in the conquered or ceded territories and, by legislation or otherwise, to apply its own laws to them and these laws can, and indeed when the occasion arises must, be examined and interpreted by the municipal Courts of the absorbing State.”

The learned Judge then went on to point out that the title of the petitioners to the disputed villages had not been repudiated upto January 26, 1950. Because of the non-exercise of the right to repudiate till that date, the petitioners were admittedly in de facto possession of the villages and the learned Judge adverted to the circumstance that those possessory right could have been asserted and enforced against all persons except the rulers who granted the lands, and except possibly the succeeding State. Considering it unnecessary to pronounce whether these rights could be enforced against the rulers as well as the Dominion of India as the succeeding sovereign, he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union, there could be no question of the Union Government claiming to exercise an “act of State” operating to deprive the petitioners of their property following in the respect the well-known decisions of Walkar v. Baird, 1892 AC 491 and Johnstone v. Pediar, 1921-2 AC 262. He further explained that “the Constitution by reason of the authority derived from and conferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territory of India and over its citizens and lands prohibited just such acts of arbitrary power as the State now seeks to uphold.”

The passage extracted and indeed the entire judgment is replete with a description of the poetry of India’s constitutional evolution as an unified State during the most momentous period of her history from the Declaration of Independence on August 15, 1947, to the coming into force of the Constitution on January 26, 1950 and of the saga of the march of the subjects of the former Indian princes from being subjects of an autocratic ruler to a modern democratic set up in which they are full-fledged citizens of India, in language at once picturesque and of authentic eloquence. We should not be understood to minimise in nay manner the political significance of the events described or underrate their importance, content or meaning if we differ somewhat from certain of the conclusions drawn on matters which are relevant for the purposes of the points arising for decision in these appeals.

Refer : AIR 1964 SC 1043 : (1964) 6 SCR 461SUPREME COURT OF INDIA
State of Gujarat Versus Vora Fiddali Badruddin Mithibarwala AND OTHERS


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Bharatiya Upa Mahadesh

CURRENT AFFAIRS

Daily Current Affairs-September

The difference between official language, national language and mother tongue-Raj Bhasha, Rashtra Bhasha and Matri Bhasha.

The Constitution of India is careful not to identify a particular language as a national language. But, the Constitution of India does speak of an official language (raj bhasha).

PATNA HIGH COURT

DIVISION BENCH

( Before : Ravi S. Dhavan, C.J; R.N. Prasad, J )

DR. JAYAKANT MISHRA — Appellant

Vs.

THE STATE OF BIHAR AND OTHERS — Respondent

C.W.J.C. No. 7505 of 1998

Decided on : 26-09-2002

Bihar Primary School Teachers Appointment Rules – Rule 15
Counsel for Appearing Parties

Mihir Kumar Jha and Arbind Kumar Jha, for the Appellant; Ashok Kumar Singh, for state and Ravi Ranjan, for Union of India, for the Respondent

JUDGMENT

Ravi S. Dhavan, C.J.—This petition has been filed as an affirmative action by one Dr. Jayakant Mishra, resident of village and Post Office Gajahara, district Madhubani. He claims that he is the President of All India Maithili Sahitya Samiti, Allahabad and has sufficient interest in the promotion and development of Maithili language, literature and script and the preservation and conservation of the culture of Mithila. He further mentions that he is filing this petition in a representative capacity for the Maithili speaking people of Bihar. He claims that Maithili is spoken in North and Central Bihar which consists of Sitamarhi, Sheohar, Madhubani, Darbhanga, Samastipur, Khagaria, Begusarai, Saharsa, Supaul, Madhepura, Araria, Vaishali (Hajipur), Munger, Bhagalpur and Banka and parts of the districts of Muzaffarpur, Motihari, Kishanganj, Katihar, Purnea, Sahebganj, Godda and Deoghar. The petition was filed in 1998 when the State of Bihar had not been split into two. Three of the districts, Deoghar, Godda and Sahebganj, at present are districts of new State of Jharkhand.

2. In the writ petition a lot has been written in the praise of Mithila, Maithili and Mithila culture. But, since the purpose of the petition is entirely different, it will not be appropriate for the Court to get involved in the qualities of the head and the heart in a singular praise of Maithili language or culture so that by mistake odious comparison may be indulged in with other languages and ethnic cultures of the Nation.

3. Plainly, the relief sought in the petition is that it is the obligation of the State to provide for mother tongue to be taught at the primary stage provided sufficient number of children are available and their guardians desire that instruction be imparted to primary school children in Maithili. Such a claim could be made by any section of the people of India who claim a distinct language and script so that the language is preserved for the benefit of the community which lays a claim for preservation.

4. The State Government appears to be reacting in its approach to other languages of its peoples, not closely resembling Hindi or its various dialects. Part of the misunderstanding arises when those who run the Government make the mistake of misplaced chauvinism, projecting nationalism on the basis of the major language which the peoples of north India may speak with different dialects. The first basic mistake which has been taken place, in the context of the present matter, is that the Government of Bihar has misunderstood the difference between official language, national language and mother tongue-Raj Bhasha, Rashtra Bhasha and Matra Bhasha. The Hindi speaking States in their administration at times act as if the other languages of the nation are in juxtaposition to Hindi as rival. This is not so. Asserting the hegemony of Hindi and being belligerently pushing it under a misconception that it is the national language (rashtra bhasha) so ordained by the Constitution of India is the biggest misunderstanding and one solitary factor which contributes to discord with people of the nation where Hindi is not spoken. A person who does not speak Hindi is no less a nationalist than any other citizen who comes from a Hindi speaking State. That Hindi may be encouraged so that it becomes a standardised link language is another aspect. But, such an effort should not be pushed so far as to offend the sensibilities of other people of India who speak their languages and are equally proud of them.

5. Some of these languages are identified in the EIGHTH SCHEDULE of the Constitution. Eighteen languages are mentioned. These are Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Sindhi, Tamil, Telegu and Urdu. Do any these languages, or any one of them, have the status of Rashtra Bhasha or national language? The answer is No. The Constitution of India balances with a sense of sensitivity and equality amongst the people to give due respect to ethnic identity of the peoples, their language and their culture. The Constitution of India speaks of a composite culture of the nation. The Court will revert to this aspect later.

6. The aspect of languages is dealt with by the Constitution of India in Part XVII of the Constitution between Articles 343 and 351. Not to be ignored, in the context of languages, is the Eighth Schedule of the Constitution which as mentioned earlier refers to 18 languages. The Eighth Schedule of the Constitution is in the context of 344 (1)-and 351. Part XVII of the Constitution of India is entitled Official Language. It comprises of four chapters. These Chapters are entitled Chapter I, Language of the Union; Chapter II, Regional Languages; Chapter III, Language of the Supreme Court, High Court, etc. and Chapter IV Special Directives. Conspicuous by its absence is the expression national language (rashtra bhasha). The Constitution of India is careful not to identify a particular language as a national language. But, the Constitution of India does speak of an official language (raj bhasha). The official language (raj bhasha) has been named as Hindi in Devnagari script and for a stipulated period. The English language has also been given a place for being used for all official purposes of the Union as the President may so provide and direct. The Constitution of India speaks of a institution of a Commission and a Committee of Parliament on official language. The Constitution of India speaks of the progressive use of Hindi as a language for use as official language and restriction in use of the English language for all or any of the official purposes of the Union. The Constitution of India also recognises languages for being used officially as are enumerated in the Eighth Schedule. This is the official part of it. The matter before the Court is not concerned with other aspects like language of the Supreme Court, High Court, etc.

7. But, this case is concerned about the special directives which need to be resorted to and the obligation of the State to provide for instruction in mother tongue at the primary stage. The Court mentions this because the matter at hand should not be looked at with any sense of rivalry or belittling one language or another.

8. This plain and simple affirmative action before the Court desires that if communities of the nation are identified as a linguistic minority group then the State is obliged to ensure the preservation of the language of the minority and this claims should not be seen in hostility.

9. The petition refers to certain directives of the State Government issued from time to time particularly since 1950 which in no uncertain terms do place on record that the State Government had taken a policy decision to arrange for Maithili to be used as a medium of instruction at the primary stage wherever people desire such facility to be available. In this regard, order of the Government of Bihar dated 22 March, 1950 needs to be noticed. It runs thus:

I have to state that the State Government have decided Maithili may be adopted as a medium of instruction at the primary stage and schools teaching though this medium may be given racognition.

10. Such similar orders continued to be issued by the Government of Bihar and these are matters of record as reflected in the order dated 16 November, 1966, (Annexure 4/1), 28 March, 1966 (Annexure 4/1 series), orders dated 13 December, 1973 (Annexure 4/2), 24 December, 1986 (Annexure 4/4), 24 July, 1975 (Annexure 4/ 5), 10 July, 1975 (Annexure 4/6). May be these orders were not implemented and put into effect.

11. An issue is being made out of a non-issue. The petition lay pending at the High Court for 4 years. The State Government did not bother to reply to it. When the hearing was taken up the State Government chose to file a counter affidavit, four years after it was filed by taking up a posture as if Maithili is to be pulled out from the curriculum of schools without receiving any State recognition. The counter affidavit has been sworn by the Secretary, Higher Education, Government of Bihar. It makes no reference to the Constitution of India and, thus, the misunderstanding or the apathy to any one else’s language and culture. For instance, an unmindful statement is made in the counter affidavit which neither has head nor tail except to insult a community by saying that any reference to their language has been extracted by Government non-recognition as a dentist pulls out a tooth. This particular statement reads thus:

Under Rule 15 it has been provided that all previous Government Rules/order/Circulars shall be repealed after comment (sic) of new appointment rules. That all the circulars referred to by the Petitioner has been (sic) repealed and is (sic) not operative.

Which rule the Secretary to the Government is referring to has not been given in the counter affidavit. Before the High Court, a counter affidavit of the State is a formal document which places either the stand or the policy of the Government. At present, the Court is not on the question whether the stand or the policy is in conformity with the Constitution of India or not. The statement which has been noticed by the Court could not be explained by the State Counsel No. 3 either. He was at a loss to connect this statement with any rule. He could not explain as to from where Rule 15 had been extracted so that by one stroke of pen recognition of Maithili as a language had disappeared from Government records. The statement made in the counter affidavit appears to have been made more as a reaction to Maithili language taking the form of ethnic bias. The High Court does not expect that a Secretary to the Government will refer to a rule and not give its title. This is misleading the court. However, let the statement be considered on its face value.

12. The submission before the Court is that by Rule 15 all circulars and orders in the context of Maithili stand abrogated, recalled and repealed. Is this possible? After an adjournment was taken, State counsel placed before the Court a copy of the Bihar Gazette, Extraordinary, No. Patna 458 dated 1 October, 1991, Human Resources Development Department notification dated 30 September, 1991-9/Wa-0549/91-2055 issued under Article 309 of the Constitution of India. This copy of the notification in Hindi refers to a rule known as Bihar Primary School Teachers Appointment Rules (Bihar Prarambhik Vidyalay Niyukti Niyamawali. Clause 15 of the rule, it is stated, has been abrogated by earlier circular and orders. The plain question is what is this rule about. This rule is framed under Article 309 of the Constitution of India. Article 309 reads: “Recruitment of conditions of service of persons serving the Union or a State.” It is under Part XIV of the Constitution of India, under the heading: Services under the Union and the State. These rules are about the recruitment of primary school teachers.

13. Thus, the State of Bihar firstly attempted to conceal from the High Court an order by which Maithili as a language may have been deleted so as not to receive any recognition. Circular and orders which may recall or repeal the recognition by the State Government were not placed, but pleaded. The rules were not mentioned in the counter affidavit and have been placed before the Court when the State Counsel was required to give reference to the context of Rule 15 mentioned in paragraph 8 of the counter affidavit. Thus, a reference was torn out of its context to mislead the Court. The Court has seen the rules and it mentions nowhere that Maithili ceased to receive recognition a) the primary stage should an occasion arise to teach it at that level on a demand by the community which speaks the language. In fact, this very rule which was concealed from the Court mentions other languages for leaching on which arrangements will be made:

14. The Court is contained to observe that tearing rules out of context to mislead and prejudice the Court is misplaced loyalty to the government. This is a dangerous tendency subversive to openness, fairness in the functioning of parliamentary democracy under the Constitution of India which rests on the motto: Satyamev Jayte.

15. The Government orders which repeal and abrogate as was pleaded are intact and the statement torn out from a rule not placed before the Court and part of an entirely a different context was a very unfair defence of the State Government.

16. The Constitution of India recognises that languages of the peoples are to be preserved. The Constitution of India makes a special reference for providing facilities for instruction in mother tongue, (matribhasha) at the primary stage. The Constitution was amended in 1956 to incorporate Article 350A. This Article reads:

350A Facilities for instruction in mother-tongue at primary stage.-It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instructor in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities.

17. Thus, when the Constitution obliges a State to provide for instruction in the mother-tongue at the primary stage not only is it an obligation on the State but even on a local authority; for instance, a municipality. A provision for imparting instruction in the mother-tongue at the primary stage of education to the children belonging to linguistic minority groups, is an endeavour which, has to be made.

18. This friction over other peoples language is an antithesis of the sentiments of the Constitution, which respects other languages as the mother-tongues of those who speak them. “The official language of the Union shall be Hindi….” Hindi, as raj bhasha, is not a rival to other language named in the Eighth Schedule and this posture should never be taken. There is a directive in the Constitution for the development of Hindi language. This directive it contained in Article 351 of the Constitution. But as it is contained in the Constitution Hindi cannot exist in isolation either. If Hindi is to be enriched then the Constitution itself says it will be by assimilating the form, style and expressions used is Hindustani and in other languages of lndia (specified in the Eighth Schedule). The directive which highlights the compos|y culture of India is an exercise in peace no hostility and belligerence. The exercise is or harmony and not discord. Article 351 of the Constitution reads:

351 Directive for development of the Hindi language.-It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expression used in Hindustani and in the other languages of India specified in the Eighth schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.

19. Other peoples cultures, languages and ethnic identities cannot disappear in (sic) air. Ideally, a citizen should know the languages of the Eight Schedules. Practically this may not be possible. But any effort which means a conflict to play up insult or demean a language of a particular community should be discouraged by the State Government. This is anti Constitution. Such an action would be an antithesis of the composite culture of the nation, a concept desired by the Constitution.

20. To sum up, Maithili is a distinct language spoken in Bihar and parts of Jharkhand. Such of those persons who claim that it is their, mother-tongue, then, in sonformity with the Government orders issued by the State Government from time to time, should an occasion arise that in a class there will be 10 children or 40 in a school, then, in accordance with the Government orders and in keeping with the spirit of the Constitution, Article 350A, a eacher has to be appointed at the primary stage to impart instruction in the mother-tongue which the children speak. The circumstance is not only of Maithili, but should (sic) community desire that arrangements be made for medium of instruction at the primary stage in the mother-tongue, given the constraints of the Constitution, the State or the local authority is obliged to make arrangements.

21. The Government orders are alive and available. The record is so certified by a writ of certiorari.

22. The petition succeeds.

R.N. Prasad, J.

23. I agree.


(2002) 4 PLJR 710

The Concept of Indianism – An Essay

India is an ancient land. Like its various rivers, different races, which have come from different directions and from different areas, have converged in this land. This land is not the only confluence of great rivers but also of great civilizations. This land has been inhabited by great civilizations. It has been ruled by Hindu Kings, Muslim Kings and even by Christians. India, in its history, did not exist as one single entity in the manner it exists in the post-constitutional era. Pre-constitutional history of India reveals that sometimes it was one single entity, ruled by one King and in other times, it was converted into many independent Countries/States/Principalities and was accordingly ruled by their own rulers.

The subjugation of people of this land by the British Empire put the inhabitants of this land to untold miseries. This land was denuded of most of its natural and material resources. Majority of people of this country were made to live in abject poverty. In order to extricate themselves from the shackles of slavery, the people inhabiting this land, belonging to different faiths, colours, castes, descents and creeds, launched the independence movement. It is this movement, which fused all these otherwise heterogeneous components into one nation. From the bosom of freedom struggle, which struggle, as already stated, had fused the people of all shades into one nation, was born a country named India. It is the huge sacrifices of the people, who constituted one nation, who gave to themselves the Constitution. The Constitution created the State called India. India, thus, became the land of the people, who belonged to different religious denominations, faiths, castes, colours and who were and are having their own different cultures.

The Constitution makers, by their great efforts, vision and wisdom, have chiseled a constitutional person called Indian, irrespective of his/her belonging to any religion, faith, caste, colour or creed.

The aforesaid constitutional provisions, with the preamble in its original form, viz. when it was originally declared, We the people of India having solemnly resolved to constitute India into a sovereign democratic republic provide complete evidence that India was constituted into a country having no State religion. The constitutional provisions, reference whereof is made hereinabove, treat all persons/citizens as one single unit. We the people who gave Constitution to themselves, conferred themselves only status of being citizens of India, in other words, called as INDIANS. The Indians in view of the aforementioned provisions, have to be given uniform treatment and cannot be subjected to discrimination on the ground of religion, race, place of birth or descent. An inbuilt mechanism is made to guarantee Indians right to profess their religion and faith. They have been given the freedom to establish their Institutions. India, as already stated, was inhabited by people who came from distant and different areas and belonged to different races, cultures, religions and faiths and settled in the land, now called India. In order to hold together this heterogeneous conglomerate of people, the Constitution was conceived to protect the interests of cross-sections of society and was delivered in a manner so as to sustain it for all times to come.

India owes its existence to the Constitution, which We the people have given to ourselves. We the people have catapulted ourselves to glorious heights by providing a road map in the shape of the Constitution to reach to the pinnacle of moral, material and physical development. The Constitution of India, which We the people have given to ourselves, has guaranteed to the Indians belonging to the different religious denominations, faiths, castes, linguistic and cultural groups to follow the ideals of their lives. The Constitution of India, on the day it was adopted by We the people, thus, declared the people and citizens of this country as one entity, called Indians 42nd amendment of the Constitution, by which the preamble of the Constitution was substituted and expressions secularism and socialism added thereto, it appears has been done only to further clarify the already existing constitutional position, in as much as, the provisions of Constitution do not discriminate between the citizens, who belong to different religions, castes, creeds as also on their places of birth.

In our constitutional scheme, a citizen of India is only an INDIAN. No person can claim himself to be a Hindu nationalist, Muslim nationalist, Sikh nationalist, Buddhist nationalist or Christian nationalist. The constitutional provisions, mention of some of which has been made in this order, does, in loud, clear and unambiguous terms, forbid using of such expression/s. A person, who persists with use of such expression/s and, in fact, believes in such a thought, has to be dealt with and proceeded against in accordance with the mandate contained in the Constitution and other laws of the land. As already stated, India belongs to Indians, who constitute one nation. Constitution of India does not recognize Hindu nationalism, Muslim nationalism, Sikh nationalism, Buddhist nationalism or Christian nationalism. These expressions denote that there is a Hindu nation, Muslim nation, Sikh nation, Buddhist nation or a Christian nation. These expressions or thoughts are antithesis and abhorrent to the Constitution of India. The Constitution, as already stated, has created one nation called India. In our constitutional philosophy, there is only one ism that is Indianism. All other isms are sworn enemies of Indianism. Any person claiming to be Hindu nationalist, Muslim nationalist, Sikh nationalist, Buddhist nationalist or Christian nationalist is not only working against the Indianism but against the very thought of India. In India, there can be forces, which can be bracketed into two groups only, Indians, who are for India and communals/extremists, who are enemies of India. If India, which is created by its Constitution, which we the people have given to ourselves, has to survive, then it is only Indianism, which has to be there and all other isms have to disappear from the firmament of the country called India.

It appears that in terms of Constitution of India, which guarantees all the rights, which include right to practice and profess one’s religion and faith, there was no requirement of bringing in expression secularism in the preamble of the Constitution. This expression has evoked a sharp reaction from a section of the population and divided people of the country into different pigeon holes of different isms. A very serious and potential threat is posed to the very existence of the idea of India by the fringe elements, who take cover under various types of isms other than Indianism. India is not a Hindu, Muslim, Sikh, Buddhist or Christian India. It is India, which is born from the bosom of the unrelenting struggle of millions of people, who, as already stated, were subjected to untold sufferings and miseries by external aggressors. India is a land, which is not only inhabited by people belonging to different religions, faiths, colours, castes and creeds but it also has different geographical dimensions and constraints. This heterogeneous conglomerate is and will be held together by one theme and one concept of being one nation called India, which is born from the bosom of Constitution.

The Constitution has created a State called India. The State comprises of different organs, viz. Executive, Legislature and Judiciary. Each organ of the State has to perform its constitutional duties within the boundaries delineated by the Constitution itself. When the Constitution itself is threatened, which, in turn, poses a potential threat to the very existence of State, then the organs thereof cannot display ostrich syndrome but have to stand up and perform their constitutional duties and obligations so as to ensure that the Constitution and the State created by it, does survive. It is this constitutional obligation, which has impelled upon the conscience of constitutional Court to perform its constitutional duties.

The concept of Indianism is the soul of the Constitution. All other isms, in essence, pose a potential threat to the soul as well as conscience of the Constitution. India and Indians are unique in the whole world as they resemble to different colours of a bright rainbow.

In the aforementioned backdrop, a question of fundamental importance arises. Can any person/s or any organization/s be permitted to create and carve out a constituency on religious plank, when we the people have not provided any scope of the like nature in the Constitution. Now if any person/s or organization/s make/s efforts to create and carve out space for itself on the basis of religion to capture political power, when same is not permissible by the Constitution, then is it not the duty of those, who have taken oath under the Constitution of India to uphold the same by halting such person/s and organization/s in their tracks, lest they preside over the disintegration and dismemberment of this great country called India.

Freedom of expression guaranteed by the Constitution of India is not absolute. It is said that, in fact, no virtue is absolute. The rights are guaranteed under the Constitution and the citizens are also under constitutional obligation to perform their fundamental duties. Article 51(A)(a) of the Constitution provides that it shall be the duty of every citizen of India to abide by Constitution and respect its ideals and institutions, the national flag and national anthem. The Constitution of India, in express terms, prohibits polarization of people on the grounds of religion, race, caste, creed or descent. Besides, it being a constitutional duty of the authorities, who are at the helm of affairs, to ensure that India stands as one unit, it is the duty of the citizens also to abide by the constitutional provisions. The collective conscience of the nation vouchsafes for India, which we the people have given to ourselves in terms of the Constitution of India. The Constitution of India is not written by the ink but by the blood of we the people. Ours is a constitutional State. The provisions of the Constitution of India do not say that the President, Vice President or Prime Minister of the country should belong to any particular religious denomination. Any citizen of this country can hold such post in accordance with the mandate contained in the Constitution. Any effort to occupy any such post in cruel defiance of the Constitutional provisions has to be stopped.

How to stop the defacement of the Constitution and occupation of the highest constitutional post(s) in violation of constitutional mandate, would require to be answered now.

The Constitution, which is given by the people to themselves and has created the State called India, which State comprises of three principal organs, viz. Executive, Legislature and Judiciary, the affairs thereof are to be conducted in accordance with the spirit and mandate of the Constitution itself. The discussion made in this order would show that the State has no religion. Thus, no office in the State can be occupied by any person and no Legislative Body can be controlled by any organization by invoking the mandate of the people on the basis of religion. Person/s and organization/s, who does not believe in the Constitution of India, by using extra-constitutional methods, cannot be permitted to occupy the high constitutional/political Offices and/or Legislative Bodies. Article 356 of the Constitution of India provides that the President, on receipt of report from the Governor of a State or otherwise if he is satisfied that a situation has arisen, in which the Government of a State cannot be carried in accordance with the provisions of the Constitution, he, by issuance of Proclamation, may assume unto himself all or any function/s of the Government of the State and all or any powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; can declare that the power of Legislature of the State shall be exercisable by or under the authority of the Parliament. The President’s further power is to make such incidental and consequential provisions as appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, goes a long way to show that the Government, in all circumstances, has to be carried in accordance with the provisions of the Constitution. Thus, any person/s and organization/s can assume any constitutional Office and/or a secure berth in Legislative Body only when such person/sand organization/s believes in and conducts its affairs strictly in accordance with the mandate contained in the Constitution. If any person/s and organization/s, in the process of securing high constitutional Office or place in the Legislative Bodies, act in cruel disregard to the constitutional mandate, then the constitutional and statutory authorities have to take steps in accordance with the laws of the land to stop the forward progress of such people. Besides these authorities, the Election Commissioner of India, in terms of article 324, is under constitutional obligation to ensure that person/s and organization/s, who, practice and profess their thoughts, which are outside the purview of Constitution and which constitute potential threat to it, are halted in their tracks in the manner which not only secures but safeguards the unity of India. The Election Commissioner of India, besides taking recourse to the provisions of Representation of Peoples Act can also issue administrative instructions in this behalf.

The very scheme of the constitutional provisions would show that We the people constituted India as a country, which guarantees equality before law and equal protection of laws and prohibit discrimination on the grounds of religion, race, caste, sex or place of birth and also provide equality of opportunity in the matters of public employment for all the citizens and it is provided that no citizen shall, on the ground only of religion, race, caste or sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against, in respect of any employment or office under the State. The protection is accorded to all the citizens to the right to freedom of speech and expression; to assemble peacefully and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of India; to practice or to carry on any profession, trade or business. These are the promises, which constitute some of the fundamental rights contained in Part III of the Constitution of India in terms of its articles 14, 15, 16, 17, 18 and 19. Article 20 thereof also refers to the expression no person and not to a Hindu, Muslim, Sikh, Christian etc. and article 21 also provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Similarly, other provisions of the Constitution, more particularly, appearing in Part III thereof, refer to the person and/or citizen. Article 25 guarantees freedom of conscience and free profession, practice and propagation of religion to all persons. The said provision of the Constitution provides that all person are equally entitled to the aforementioned guarantees. Article 26 of the Constitution guarantees to all its citizens’ freedom to manage religious affairs. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated for payment of expenses for promotion or maintenance of any particular religion or religious denomination. Article 28(1) provides no religious instruction shall be provided in any educational Institution wholly maintained out of State funds. Article 28(3) provides no person attending any educational Institution, recognized by the State or receiving aid out of State funds, shall be required to take part in any religious instruction that may be imparted in such Institution or to attend any religious worship that may be conducted in such Institution or in any premises attached thereto unless such person or if such person is a minor, his guardian has given his consent thereto. Article 29 provides protection of the interests of minorities. Article 29(1) provides any section of citizens residing in the territory of India or in any part thereof, having a distinct language, script or culture of its own, shall have a right to conserve the same. Article 29(2) provides no citizen shall be denied admission to any educational Institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30 guarantees the rights of minorities, whether based on religion or language, to establish or administer educational Institutions.

The Constitution makers, by their great efforts, vision and wisdom, have chiseled a constitutional person called Indian, irrespective of his/her belonging to any religion, faith, caste, colour or creed.

 

National Days

Supreme  Court observed[dated 22.01.2008 passed in B.A. No.5255 of 2007[G. Surya Muthu v. State of Kerala] that the National holidays are days not merely to sit at home idle, rather these days be treated as opportunities to kindle the flame of nationalism, patriotism and constitutional idealism. Following was observed by this Court in paragraph 3 :

“3. National days are occasions not merely to sit at home and idle. They must be reckoned as opportunities to kindle the flame of nationalism, patriotism and constitutional idealism and as occasions to introspect and rededicate to the ideals that India stands for. They must be occasions when Indians think of their great good fortune of being Indians. They must look around in the neighbourhood and realise their great advantage of remaining citizens of a democratic country. These are occasions to be proud that we are Indians. Introspection must help us to realise and identify how and where we have erred and to contemplate; how the polity can be enthused to do better in the future years. Good must and shall certainly come out of such celebrations. The State should not let go such opportunities without realising their potentiality.”

8. In the above case this Court noticed that there is no express expectation for the Government servant as to how the national days must be celebrated in the office. The Court also noticed that the Circular dated 16.01.2008 was issued by the Government which stated that the Head of the Department “should ensure participation of the maximum number of staff in the endeavour.” The court in paragraph 5 further observed as follows:

“5. ……….. National days, I do hope, shall hereafter be occasions for serious observance and celebration in the Government offices and establishments in the State. Participation must be insisted. It must be a different type of holiday and not merely an idle holiday to sit at home. Even the order that is issued does not insist on participation specifically, but only says that the heads of departments “should ensure participation of the maximum number of staff in the endeavour” with due regard to the provisions of the Flag Code, 2002. I assume that the message will properly reach the target and national days shall hereafter be an occasion for sublime activity and celebration in the offices and establishments of the State. Ext.R1(b) order, it is hoped, shall be observed properly and the indiscretion which has taken place in this case will not hereafter occur in any office of the Government in the State.”

9. It is submitted before us that even after the order of this Court there are no clear directions by the State for the Government servant or other public servant including the employees of Local authorities and other bodies under the control of the State to compulsorily participate in the national day celebrations. In the above context it is relevant to refer to Article 51A of the Constitution of India by which provision fundamental duties have been incorporated in the Constitution by the Constitution(42nd Amendment) Act, 1976. Article 51A(a) (b) reads as under:

“51A. Fundamental duties.- It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;”

One of the fundamental duties as noted above is to “cherish and follow the noble ideals which inspired our national struggle for freedom”. What else can be most important days than the above national days to cherish the noble ideals which inspired our national struggle for freedom. The above fundamental duty is cast upon every citizen of India. We are thus of the view that participation in the national day celebrations is expected not only from the Government servant and other public servant, local authorities, institutions, but it should be a spirit of every citizen of India to participate and cherish the memory of above important days in the history of India.

The Independence Day is one of the most significant day in the Indian history. After a freedom struggle of almost 100 years, India could attain freedom and to commemorate the above day it is declared as national holiday. Similarly, 26th January is another significant day for the country on which day the people of India have resolved to constitute India as a sovereign democratic republic on which day the constituent assembly adopted, enacted and gave to the people of India, the Constitution of India.

Flag Code [ Indian] is not a statute

Supreme Court in the case of Union of India v. Navin Jindal & Another [(2004) 2 SCC 510], wherein it has, inter alia, been held that the Flag Code which, inter alia, prescribes that the national flag after sunset be lowered down is not a law within the meaning of Article 13 of the Constitution of India. The Supreme Court held as under:-

“78. Flag Code is not a statute; thereby the fundamental right under Article 19(1)(a) is not regulated. But the guidelines as laid down under the Flag Code deserve to be followed to the extent it provides for preservation of dignity and respect for the National Flag. The right to fly the National Flag is not an absolute right. The freedom of expression for the purpose of giving a feeling of nationalism and for that purpose all that is required to be done is that the duty to respect the flag must be strictly obeyed. The pride of a person involved in flying the flag is the pride to be an Indian and that, thus, in all respects respect to it must be shown. The State may not tolerate even the slightest disrespect.”

5. To appreciate the arguments of the parties, Clause 2.2 (xi) of the Flag Code needs to be extracted. It reads as under:-

“2.2. A member of public, a private organisation or an educational institution may hoist/display the National Flag on all days and occasions, ceremonial or otherwise. Consistent with the dignity and honour of the National Flag �

(xi) where the Flag is displayed in open, it should, as far as possible, be flown from sunrise to sunset, irrespective of weather conditions.”

6. The said clause does not mandatorily contemplate lowering the Flag after sunset. The Supreme Court in Navin Jindal’s Case (supra) held as under:-

“(i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen with the meaning of Article 19(1)(a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation.

(ii) The fundamental right to fly the National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause (2) of Article 19 of the Constitution of India.

(iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag.

(iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the National Flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed.

(v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-a-vis, the regulatory measures/restrictions, both Parts IV and IV-A of the Constitution of India can be taken recourse to.”