Language of Justice-II

 

Amit Jaiswal*

Recently a news report appeared in the Indian Express that the Governor of Haryana, on the request of State government, has sent his recommendation to the President of India for his consent which will authorize use of Hindi language in proceedings before the Punjab & Haryana High Court.

This move will have sweeping effects on the justice administration system in our Country and needs broader discussion which the government has totally avoided.

At present the judicial system in India is well developed, integrated and uniform throughout the Country.  Lawyers as well as the Judges all over India have the benefit of easy access to the views of other High Courts on similar legislations and other matters of law and constitution.  Presently, the Judges from one High Court are transferred to other High Courts throughout the India seamlessly.    This has given a unified structure to the Indian judicial system and laws are uniformly applied throughout the Country. The hallmark of any robust legal system is that the law should be certain, precise and predictable and we have nearly achieved that in India.  To a very great extent we owe it to the English language which has served as a link language for India where we have about two dozen official State languages.

Republic of India has 29 States, 25 High Courts and 22 official Languages recognized by Eighth Schedule of the Constitution of India.  Still there are more languages vying for space in the eighth Schedule and list is bound to swell.

As per Article 348 (1) of the Constitution of India English is the official language for all the High Courts.  However as per Clause (2) of Article 348 the Governor of a State with the previous consent of President of India can authorize use of official language of the State in proceedings before its High Court.

            States of U.P., Bihar, Rajasthan and M.P. have already authorized the use of Hindi in proceedings before their respective High Courts and taking the cue the State of Tamil Nadu is also working in that direction to authorize the use of Tamil before its High Court.  Language has always been an emotive issue in India and spectre of introduction of respective official languages of the States in 25 different High Courts looms large which will have very serious repercussions for the Indian Judicial system.  A hitherto unified and well structured legal system within the Country might well disintegrate in the game of lingual one-upmanship by the States.  

The language barrier, thus created, will also make the transfer of High Court Judges, who are transferred on all India basis, outside the parent court virtually impossible. A judge transferred from High Court of Kerala or Andhra or Gujarat or Orissa to Punjab & Haryana High Court will find it impossible to deal with the proceedings in Hindi and vice versa.   Another issue which concerns all the High Courts throughout the Country is the issue of practicing kith and kins of the High Court Judges in the same very High Court. The issue was raised and discussed even as early as in the First Judges case in 1981 (S.P. Gupta vs. President of India). Hon’ble Supreme Court observed “We have to take into account the advice given by the CJI in one of the seminars that where close relations of a Judge or the Chief Justice practice in the same court and are likely to gain undue advantage, the concerned judge should himself, in obedience to the keen sense of justice which every Judge possesses opt to be transferred to some other High Court.” However the issue remains very much alive till date and so are the concerns. Furthermore, it is a settled policy and practice that the Chief Justice of a High Court has to be a judge from outside of that very High Court.  These are very important checks and balances in the system.  The above issues of transfer have their own difficulties and challenges, throw in language angle and we will find everything falling apart.

It is not out of place to mention here that as per Article 343 of Constitution of India Hindi is the official language of the Union of India but for an initial period of 15 years English language also was to continue to be used for official purposes.  However, after the passage of 15 years, almost all the non-Hindi speaking States did not agree to adoption of Hindi as official language and saw the same as imposition of Hindi Language upon them. To avoid conflict and to preserve the unity of the Country a via-media had to be devised by enacting Official Languages Act, 1963 which allowed the usage of English as official language of Union alongside Hindi and till date both Hindi and English continue to be official languages of the Union. English has been accepted as a link language for communication between Union & Hindi speaking States on one side and non-Hindi speaking states on the other. Thus despite a Constitutional mandate Hindi language could not be implemented as the only language for Union and space had to be given to one link language which was acceptable to all the States.   So, we have an important lesson from history but different State Governments are conveniently ignoring the same and thus it can be said that they are not working in larger national interest.  The ensuing tug of war of languages between the States with each State pulling in its own direction does not portend well for the unity of Country and in the process it will cause immense and irreparable harm to the judiciary of the country.

The move by the different States to introduce their official language in their respective High Courts without having a discussion with other States at any level or making any effort to achieve even a semblance of consensus for the alternative link language in place of English will only create legal pigeonholes in the Country with judiciary of one State will have no means to interact with the judiciary of the other States.  The channels of communication between judiciaries of different States will be broken. In that eventuality the unified structure of judicial system of the Country will not be the only thing which may crumble at the altar of parochial regional politics and lingual chauvinism.

 

*Amit Jaiswal

Advocate

Mobile: 9417350634

E mail: amitjaiswal.adv@gmail.com

 

 

(Writer is a practicing advocate in Punjab & Haryana High Court with 19 years of standing at the Bar practicing largely on Civil side and is a alumni of Panjab University, Chandigarh)