Amit Jaiswal
(Written by 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 [on Haryana Official Language (Amendment) Act of 2020], which will authorize use of Hindi language in proceedings before the Punjab & Haryana High Court.
This move will have sweeping effect 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 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 seamlessly. This has given a unified structure to the Indian judicial system. 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 the Eighth Schedule of the Constitution. 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 Uttar Pradesh, Bihar, Rajasthan and Madhya Pradesh have already authorized the use of Hindi in proceedings before their respective high courts and taking a cue, 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 repercussion 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 introduction of official state languages to the proceedings also directly confronts and interferes with the transfer policy of high court judges. If 25 different high courts carry out proceedings in as many different official languages, then how the judges, who are transferred on all India basis, will be able to hear and adjudicate the matters on being transferred outside the parent high court? 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 kin of the judges in the same high court. The issue was raised and discussed even as early as in the first judges case in SP Gupta vs President of India (December 30, 1981). The 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 practise 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 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. Thus transfers are important inbuilt measures for maintaining checks and balances in the system. The above issues of transfers have their own difficulties and challenges, throw in the language angle and we will find everything falling apart.
There is one more aspect which needs to be noticed in the instant case that the Punjab & Haryana High Court is the joint high court for the states of Punjab and Haryana and Union Territory of Chandigarh. Propriety demanded that any move by Haryana government to authorize use of Hindi before the high court should have been preceded by consultations with Punjab government and Chandigarh administration. But government of Haryana chose to proceed unilaterally without making any attempt at all to bring the other two stakeholders on board. This is when both the states also share their Capital city and the seat of power for all the three stakeholders is within Chandigarh. Besides, though not a requirement in terms of Article 348 of the Constitution, courtesy demanded that Punjab & Haryana High Court should have been consulted and taken into confidence before such a move. However, as appears from the news reports that does not seem to be the case. Such an exclusivist approach by any of the states of the Union of India is surely not in larger national interest.
Thus 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 with judiciary of one state having 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.
(Writer is a practicing advocate in Punjab & Haryana High Court with 18 years of standing at the Bar)