- (1.) This petition was drafted in Sanskrit language and has been filed 24 years ago for adjudication before this Court alongwith a copy of writ petition in Hindi Deo Nagri script. On 2.7.1986 this Court has admitted the aforesaid writ petition and issued notices to the opposite parties. The order admitting the writ petition was passed by Hon'ble Mr. Justice B.L. Yadav (as he then was) in three languages i.e. in Sanskrit language, in Hindi Deo Nagri script and in English language.
(2.) Today the case has been taken up for hearing. Learned counsel for the petitioner has been asked to inform the Court as to whether a writ petition drafted in Sanskrit language can be presented for adjudication before this Court or such writ petition can be entertained and adjudicated by this Court or not? In reply thereto learned Counsel for the petitioner has pointed out only this much that about 24-25 years ago a decision was rendered by Hon'ble Justice Late B.L. Yadav in Sanskrit language therefore he has submitted to decide instant writ petition on merit, which has been drafted and presented in Sanskrit language. In support of his aforesaid submission he has neither cited the aforesaid decision rendered by this Court in Sanskrit language nor can point out any provision of law under which such petition can be presented for adjudication in Sanskrit language before the High Court. Contrary to it a preliminary objection has been raised by learned Standing counsel about the maintainability of the instant writ petition presented before this Court in Sanskrit language. Thus in given facts and circumstances of the case, now question arises for consideration is that as to whether a writ petition presented in the Sanskrit language can be adjudicated or this Court can refuse to entertain and adjudicate such writ petition? In this connection, it is to be noted that Part-XVII of the Constitution of India deals with the official language and Chapter I of which consisting of Articles 343 and 344 deals with the language of the Union, Chapter II consisting of Articles 345,346 and 347 deals with the regional language and Chapter III consisting of Articles 348 and 349 deals with the language of Supreme Court and High Courts etc., out of which Article 348 specifically deals with the language to be used in proceeding before the Supreme Court and High Courts and for Acts, Bills etc. whereas Article 349 provides special procedure for enactment of certain laws relating to language. Thus it would be appropriate to refer the provisions of Article 348 of Constitution of India in extenso, which specifically deals with the language to be used in Supreme Court and High Courts, as under: "CHAPTER III LANGUAGE OF THE SUPREME COURT, HIGH COURTS, ETC. 348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.- (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides- (a) all proceedings in the Supreme Court and in every High Court, (b) the authoritative texts- (i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State, (ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language. (2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise 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. Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court. (3) Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that subclause, a translation of the same in the English language published under the authority of the Governor of the State in the official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article."
(3.) From a plain reading of Article 348 (1) (a) of the Constitution of India it is clear that the provisions of said Article open with non-abstante clause to the effect that notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides all proceedings in the Supreme Court and in every High Court, shall be in the English language. It means that despite anything contained in the foregoing provisions of Part XVII of the Constitution until Parliament by making/enacting a law otherwise provides, all proceedings in the Supreme Court and in every High Court, shall be in English language. Clause (2) of Article 348 of the Constitution again opens with similar non-abstante clause to the effect that notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise 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. It means that the Governor of a State with the previous consent of the President, can authorise the use of Hindi language or any other language used for any official purposes in that State, in the proceedings in the High Court of that State. Article 348 (2) of the Constitution is further controlled by a proviso appended to it which stipulates that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court. Before further proceeding with the case, it would be useful to refer a decision of Hon'ble Apex Court in S. Sundaram Pillai v. V.R. Pattabiraman, 1985 AIR(SC) 582 wherein Hon'ble Apex Court has dealt with the functions, purpose and object of the proviso appended to any statute by referring several authoritative books and juristic opinions and earlier decisions in paras 27 to 42 of the decision which are extracted as under: "27. Craies in his book 'Statute Law' (7th Edn.) while explaining the purpose and import of a proviso states at page 218 thus: "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it.....The natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso." 28. Odgers in 'Construction of Deeds and Statutes" (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients: P.317 "Provisos - These are clauses of exception or qualification in an Act, excepting something out of or qualifying something in, the enactment which, but for the proviso, would be within it." P.318 "Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment." 29. Sarathi in 'Interpretation of Statutes" at pages 294-295 has collected the following principles in regard to a proviso: "(a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. (b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended, (c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers. (d) Where the section is doubtful, a proviso may be used as a guide to its interpretation; but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section. (e) The proviso is subordinate to the main section. (f) A proviso does not enlarge an enactment except for compelling reasons. (g) Sometimes an unnecessary proviso is inserted by way of abundant caution. (h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. (i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. (j) A proviso may sometimes contain a substantive provision." 30. In the case of Local Govt. Board v. South Stoneham Union, 1909 AC 57, Lord Macnaghten made the following observation "I think the proviso is a qualification of the preceding enactment, which is expressed in terms too general to be quite accurate" 31. In Ishverial Thakorelal Almaula v. Motibhai Nagjibhai, 1966 AIR(SC) 459 it was held, that the main object of a proviso is merely to qualify the main enactment. In Mand S.M. Railway Co. Ltd. v. Bezwada Municipality, 1944 AIR(PC) 71, Lord Macmillan observed thus: "The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case." 32. The above case was approved by this Court in Commr. of Income Tax, Mysore v. Indo Mercantile Bank Ltd., 1959 AIR(SC) 713), where Kapur,J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, 1961 AIR(SC) 1596 , Hidayatullah, J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus: "As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule." 33. In West Derby v. Metropolitan Life Assurance Co., 1897 AC 647, while guarding against the danger of interpretation of a proviso, Lord Watson observed thus: "a very dangerous and certainly unusual course to import legislation from a proviso wholesale into the body of the statute." 34. A very apt description and extent of a proviso was given by Lord Oreburn in Rhodda Urban District Council v. Taff Vale Railway Co., 1909 AC 253, where it was pointed out that insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. To the same effect is a later decision of the same Court in Jennings v. Kelly, 1940 AC 206, where it was observed thus: "We must now come to the proviso, for there is, I think, no doubt that in the construction of the section the whole of it must be read and a consistent meaning if possible given to every part of it. The words are "provided that such licence shall be granted only for premises situate in the ward or district electoral division in which such increase in population has taken place." There seems to be no doubt that the words "such increase in population" refer to the increase of not less than 25 per cent of the population mentioned in the opening words of the section." 35. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. 36. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. 37. Apart from the authorities referred to above, this Court has in a long course of decisions explained and adumbrated the various shades, aspects and elements of a proviso. In State of Rajasthan v. Leela Jain, 1965 AIR(SC) 1296 , the following observations were made: "So far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part." 38. In the case of Sales Tax Officer, Circle l, Jabalpurv. Hanuman Prasad, 1967 AIR(SC) 565 , Bhargava, J. observed thus: "It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the legislature desires should be excluded." ? 39. In Commr. of Commercial Taxes v. R.S. Jhaver, 1968 AIR(SC) 59) this Court made the following observations: "Generally speaking, it is true that the proviso is an exception to the main part of the section; but it is recognised that in exceptional cases a proviso may be a substantive provision itself." 40. In Dwarka Prasad v. Dwarka Das Saraf, 1976 1 SCC 128, Krishna Iyer, J. speaking for the Court observed thus: "There is some validilty in this submission but if, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case. If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso.- A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction." 41. In Hiralal Rattanlal v. State of U.P., 1973 1 SCC 216this Court made the following observations: "Ordinarily, a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provision is called proviso, it is really a separate provision and the so-called proviso has substantially altered the main section." 42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting certain provisions from the main enactment: (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable: (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.";