June 18, 2020 12:01:18 pm
Written by Amit Jaiswal
Recently the Haryana Government amended the 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 the basis of our present day legal system. In brief, 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 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. 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 1919.
The development of legal system and Courts in India is inextricably intertwined with English language.
The objective sought to be achieved by the amendment is to enable citizens to understand the entire justice process in their own language. A closer look by any career Advocate would reveal the inherent fallacies:
- The language of communication/arguments between advocates and the judges before subordinate courts is already Hindi and litigants also freely interact with judicial officers in this language
- Even at present the statements of witness are largely being recorded in Hindi. In case evidence is recorded in English the questions to the witnesses are invariably put in Hindi and he answers in Hindi, which is translated into English in open court in the presence of counsels for the parties. The judicial officers make practical choices depending upon the nature of the 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 transparent and efficient.
- Mandating judicial officers throughout the State to write their judgments/orders only in Hindi will only choke the system. Even the quality of judgments might be compromised. Besides, the cost of creating the infrastructure will be huge. Any career advocate will vouch that even the most educated of the litigants hardly go 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 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 CrPC.
- The amendment will prove costly for a litigant because in case he files an appeal in the High Court or Supreme Court, the entire court record will be translated into English at his cost.
- The objective of using Hindi for the convenience of the litigant 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. It is same for the Judge. Can a litigant really understand the entire process of justice?
The objectives sought to be achieved by the amendment seems to be born out of the misconception that judicial process is a layman’s job.
By this logic even patients have a right to understand entire medical process and therefore the doctors in government hospitals and PGIs in the State should also be directed to do all the work in Hindi.
The other issue is of authorizing the use of Hindi in proceedings before the Punjab & Haryana High Court. There are 22 official languages of Republic of India listed in the Eighth Schedule of the Constitution. Still there are languages which do not find mention in the Schedule but enjoy the status of official language like Mizo in Mizoram.
In case 25 different High Courts carry out proceedings in as many different regional languages, the entire judicial structure, which is at present well developed, integrated and uniform throughout the country, will crumble. The language barrier thus created will also make it virtually impossible to transfer the High Court Judges outside the parent High Court.
It is needless to say that the transfer is an important tool in maintaining checks and balances in the system.
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 the 2011 census English is the 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. Making Hindi the only language of proceedings before the subordinate courts in Haryana will put the entire system into convulsions for benefits which are more illusory than real for the end user ie the litigant.
It so seems from the newsreports that the government has gone ahead with the matter, whose consequences are so far reaching on the justice administration system, without formally consulting any of the stakeholders, not even the Chief Justice of Punjab & Haryana High Court which is not in line with the best of the democratic traditions.
(The writer is a practicing advocate in the Punjab & Haryana High Court, and is an alumnus of Panjab University)
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