LANGUAGE OF JUSTICE

Amit Jaiswal*

Recently the Haryana Government amended Haryana Official Language Act, 1969 and inserted Section 3-A in the Act which is as under:-

“3-A. use of Hindi in Courts and Tribunals: (1) In all the civil courts and criminal courts in Haryana subordinate to the High Court of Punjab and Haryana, all revenue courts and rent tribunals or any other court or tribunal constituted by the state government, work shall be done in Hindi language.”

The Governor of Haryana has also sent his recommendation to the President of India, in terms of Article 348(2) of Constitution of India, for his consent which will authorize use of Hindi language in proceedings before the Punjab & Haryana High Court.

This issue has far reaching affects and requires a deeper look into our judicial system.

British Rule in India introduced the Common Law system of England which provides basis of our present day legal system. The space doesn’t permit to recount all the milestones on judicial timeline. Putting briefly, the judicial history of modern day India can be traced back to 1726 A.D. when the Crown by way of a Charter permitted the East India Company to establish Mayor’s Courts in the Presidency Towns of Madras, Bombay and Calcutta. In the year 1861 British Parliament passed Indian High Courts Act and Queen Victoria issued Letters Patent to create High Courts in Madras, Bombay and Calcutta.  The appeals from the High Courts lay to Privy Council at London.

Coding of law began with formation of first Law Commission in the year 1834. The India was introduced to systematic codified laws viz. Indian Penal Code, 1860; Indian Evidence Act, 1872; Indian Contract Act, 1872; Code of Civil Procedure, 1908 just to name a few.  After independence we inherited legal knowledge and jurisprudence developed and refined by High Courts and Privy Council over the years. High Courts in India are still bound by the decisions of Privy Council.   

The Punjab & Haryana High Court is a successor to Lahore High Court and traces its origin to Letters Patent which created Lahore High Court in the year 1919. 

It could be unmistakably noticed that the development of legal system and Courts in India are inextricably intertwined with English language. 

Eighth Schedule of the Constitution lists 22 official Languages of Republic of India. Still there are languages which do not find mention in the Schedule but enjoy the status of official language in States like Kokborok in Tripura and Mizo in Mizoram.  There is no other country in the world where there are about two dozen official State languages.

The introduction of official languages to the proceedings before their respective High Courts by different States will have a direct bearing on the issue of transfer of High Court judges who are transferred on all India basis.  In case 25 different High Courts carry out proceedings in as many different languages then the judges will be unable to hear and adjudicate the matters on being transferred outside the parent High Court. In that eventuality the transfer of judges outside the parent High Court will virtually become impossible.  It is needless to add the transfer is an important tool in maintaining the checks and balances in the system.

If all the States indulge in this lingual one-upmanship then the entire judicial structure, which is at present well integrated and uniform throughout the length and breadth of the Country, will crumble. 

Objectives of Amendment:- 

The objective sought to be achieved by the instant amendment is to enable citizens to understand the entire justice process in their own language and can easily put their views before the Courts.  A closer look by any career Advocate would reveal the inherent fallacies which I have tried to point out in following paragraphs:-

(i)         The language of communication/arguments between advocates and the judges before subordinate courts is already Hindi and litigants also freely interact with the judicial officers in Hindi language only.

(ii)        Even at present the statements of witness are largely being recorded in Hindi language by the Courts.  In case evidence is recorded in English the questions to the witnesses are invariably put in Hindi and he answers the same in Hindi, which is translated then and there in English in open court in the presence of counsels for the parties.  At present the judicial officer has a slight leeway to make practical choices depending upon the nature of case and of testimony. Thus in a same case some of the witnesses may depose in Hindi but the testimony of doctor or other experts may be recorded in English.  The process is fair, transparent and has been working very well for over a century.

(iii)       Mandating every judicial officer throughout the State to write his/her judgments/orders only in Hindi so as to afford litigants to read the judgments is again a fallacy.  This will rather end up in choking the system. Besides, the cost to be incurred in overall infrastructure will be huge. In my experience of last 18 years as a lawyer I have not seen even the most educated of my clients going through the entire judgment but only the concluding paragraphs. The solution is rather simple; if somebody wants to get the copy of judgment in Hindi then a provision should be made that on an application a translation of the judgment should be made available to him.  For criminal matters such provision is already there in Section 363 of Cr.P.C. 

(iv)       The amendment will prove too costly for a litigant because in case he has to file appeal in High Court or Supreme Court, entire court record will be translated in English at his cost.

 (v)       The objective of use of Hindi so as to make litigant understand entire justice process is specious. An advocate is a professional who has read voluminous commentaries and judgments to imbibe the judicial process, legal principles and the nuances of law.  Similar goes for the Judge as well. Can a litigant, by any stretch of imagination, ever understand entire process of justice? 

The objectives sought to be achieved by the amendment seems to be born out of the misconception that judicial proceedings are layman’s job.

By this logic even patients have a right to understand entire medical process and therefore the doctors in government hospitals, in PGIs and AIIMS should also be directed to do all the work in Hindi.

Conclusion:

The language has always been a highly emotive issue in India.  Spectre of a chain reaction looms large where we may have two dozen different official State languages for 25 different High Courts which will destroy the unified structure of justice administration within the country at the altar of linguistic chauvinism.

Much water has flowed down the Ganges since independence. English is one of the official languages of Union of India, official language of Supreme Court of India and the High Courts. As per 2011 census English is second-most widely spoken second language in India. There is no escape from the reality that English language has come to stay.

Dual Language system has been working well for the Courts with a lot of practicalities attached to it. Making Hindi the only language of proceedings before the subordinate courts in Haryana will put the entire system into convulsions for the benefits which are more illusory than real for the end user i.e. the litigant.

It so seems from the news reports that the government has gone ahead with the matter, whose consequences are so far reaching on the working of the Courts and administration of justice, without formally consulting any of the stake holders, not even the Chief Justice of Punjab & Haryana High Court which is not in line with best of the democratic traditions.

 

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)