View
13
Download
0
Category
Tags:
Preview:
DESCRIPTION
The Gujarat High Court ( Justice Jayant Patel and Justice R H Shukla) said that only those persons, who speak and understand the English language well, will be allowed to present their case as party-in-person. The court said that except for permission from the concerned bench or in absence of objection from other parties to use Gujarati and Hindi, the litigant can make presentation in vernacular language. There is exception in certain litigation like habeas corpus.#NoGujarati #OnlyEnglish #GujaratHighCourt #Judgment
Citation preview
R/CR.RA/201/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 201 of 2015With
CRIMINAL REVISION APPLICATION NO. 335 of 2014With
CRIMINAL REVISION APPLICATION NO. 184 of 2015With
CRIMINAL MISC.APPLICATION NO. 3202 of 2015 In
CRIMINAL REVISION APPLICATION NO. 69 of 2015WITH
CRIMINAL REVISION APPLICATION NO. 69 of 2015
FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL andHONOURABLE MR.JUSTICE RAJESH H.SHUKLA ==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
==========================================================MANISH KANAIYALAL GUPTA....Applicant(s)
VersusSTATE OF GUJARAT & 1....Respondent(s)
==========================================================Appearance:PARTYINPERSON, PERSONAL CAPACITY for the Applicant(s) No. 1MR KAMAL TRIVEDI, ADOVCATE GENERAL WITH MS. SANGEETA VISHEN, APP for the Respondent(s) No. 1
Page 1 of 29
R/CR.RA/201/2015 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE JAYANT PATELandHONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 08/07/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As such, at the outset, we may record that all
these matters are referred to the Division Bench
of this Court under the orders passed by Hon’ble
the Acting Chief Justice on administrative side
for necessary direction/order, since the Hon’ble
Single Judges of this Court on judicial side had
made observation inter alia that the committee
under Rule 31A of the Gujarat High Court Rules,
1993, (hereinafter referred to as the “Rules”)
had made observations about the use of the
language of Gujarati though language of the Court
is English and the certificate of competence
issued by the Committee under Rule 31A of the
Rules ignoring the language to be used in the
court proceedings.
BACKGROUND:
2. In order to appreciate the necessity of direction
or orders of the Division Bench, we may briefly
refer to the background.
3. Criminal Revision Application No.201/15 has been
preferred in Gujarat Language by partyinperson
Manish Kanaiyalal Gupta under section 397 read
Page 2 of 29
R/CR.RA/201/2015 JUDGMENT
with section 401 of Cr.P.C. Against the order
dated 17.03.2015 passed by the Additional
Sessions Judge in Appeal No.56/14. The
application was made for certification of
competency to assist the court by the partyin
person and such has been so certified by the
members of the committee. When the matter came
up for hearing before the learned Single Judge of
this Court (Coram: N.V. Anjaria, J.), on
08.05.2015, following order was passed:
“The applicant appears as partyinperson.
As the partyinperson proceeded to conduct and argue the matter, he fairly conceded that he was not wellversed with English language and is not able to understand English. He stated that he is proficient in Hindi language. The pleadings as well as the impugned order are in Gujarati.
Partyinperson, however stated, that he has brought with him a person named Mukeshkumar Lakshmanbhai Vankar who, stated partyinperson further, is experienced with the proceedings of the Court and knows language of the Court and that he may act as a Mediator. Partyinperson requested the Court that while he would conduct the matter, the said other person would explain the argument and fillup communication gap between the partyinperson and the Court. The partyinperson is the native of the State of Uttar Pradesh. The person who he brought projecting himself to be the Mediator, is the resident of Ahmedabad.
The subject matter and the order impugned in the Revision Application is an order passed under Section 125 of the Code of Criminal Procedure, 1973 whereby the applicant is
Page 3 of 29
R/CR.RA/201/2015 JUDGMENT
directed to pay maintenance to wife.
As the partyinperson wanted to assail that order, he was asked to read some of the paragraphs from the pleadings of the Revision Application which is in Gujarati language. The partyinperson struggled like anything. His struggling was expected in asmuch as he had conceded that he did not know Gujarati language.
The entire scenario created before the Court by the partyinperson as above was a sorry state of affair and if repeated, would undermine the decorum of the Court.
The certification of competency to appear as partyinperson given to the applicant under Rule 31A of the Gujarat High Court Rules, 1993 showed that the applicant is proficient in Hindi language. The language of the pleadings is different, the language of the Court is different and the knowledge of the applicant is in different language. This was superadded by the dramatic request of the partyinperson allowing him to be assisted by another individual to interpret and explain to the Court the arguments and submissions of partyinperson. The certification granted by the Committee certifying the partyinperson competent to appear and conduct the matter requires reexamination. Accordingly the Committee acting under Rule 31A of the Gujarat High Court Rules, 1993 shall undertake the process anew and take afresh decision.
The matter may be listed on 23rd June, 2015.”
4. The aforesaid shows that it was observed by the
learned Single Judge that the certificate of
competency to appear as partyinperson under
Page 4 of 29
R/CR.RA/201/2015 JUDGMENT
Rule 31A of the Rules has been granted to the
applicant who is proficient in Hindi language
whereas the language of pleading is different.
The language of court is also different and the
language for which the knowledge with the
applicant is different and it was also observed
that the committee acting under Rule 31A of the
Rules shall undertake the process, anew and take
afresh decision.
5. Criminal Revision Application No.335/14 has been
preferred by Mr. Aziz Mohammad Shafi Rangwala
(hereinafter referred to as “Mr.Rangwala”) under
section 397 of Cr.P.C. against the order dated
11.02.2014 passed by the learned Additional City
Sessions Judge, Ahmedabad in Sessions Case
No.266/09. The language used in the revision
application is English. As the matter was filed
by partyinperson, the certificate has been
issued by the committee under Rule 31A of the
Rules that the partyinperson is competent to
assist the Hon’ble Court in person. When the
matter came up for hearing before the learned
Single Judge (Coram: N.V. Anjaria, J.) on
20.03.2015, following order was passed –
“The partyinperson in the course of his submission stated that the Committee which examined him for the purpose of Rule 31A of the Gujarat High Court Rules, 1993, has permitted him to argue and make submissions in Gujarati language. A memorandum of Criminal Revision Application which is claimed to have been prepared by the party
Page 5 of 29
R/CR.RA/201/2015 JUDGMENT
inperson is in English language.
If the statement and submissions of partyinperson that the Committee has allowed him to argue in Gujarati language is to be believed, it reflects ignorance about language practised in the proceedings of the High Court. At the same time, in the report, nothing is stated about what is claimed by the partyinperson. Let the Committee reexamine competency under Rule 31A of the Gujarat High Court Rules, 1993.”
6. The aforesaid shows that when the statement was
made by the partyinperson in the Court that the
committee has allowed him to argue in Gujarati
language, the learned Judge found that such shows
ignorance about the language practiced in the
proceedings of High Court. Therefore, the learned
Single Judge directed the committee to reexamine
the competency under Rule 31A of the Rules.
7. Criminal Revision Application No.184/15 has been
preferred in English language under section 397
read with section 401 of Cr.P.C. by one Kiranbhai
Morarbhai Patel against the order dated
31.01.2015 passed by the learned Sessions Judge,
Narmada in Criminal Appeal No.9/14. The petition
is preferred by the learned Advocate Mr. Apurva
R. Kapadia and the learned Single Judge vide
order dated 20.04.2015 issued Rule and the same
was made returnable. When the matter came up for
hearing again, respondent no.4 Jigneshbhai
Veljibhai Mistry appeared as partyinperson and
Page 6 of 29
R/CR.RA/201/2015 JUDGMENT
he started making submission in Gujarati and he
also represented when he was permitted to appear
under Rule 31A of the Rules. The learned Single
Judge (Coram : N.V. Anjaria, J.) on 06.05.2015,
passed the following order:
“Partyinperson respondent No.4 appears.2. When the partyinperson started to make
his submissions, he started in Gujarati. When asked, he was unaware about anything else, but stated that he was permitted to appear under Rule 31A of the Gujarat High Court Rules, 1993.
3. This is the second instance noticed and came across by this Court that the partyinperson is arguing in Gujarati language, even as the entire record is in English, the contents of which he claims to be aware of. When the certificate issued by the Committee functioning under Rule 31A of the Rules, was seen, it was stated that the partyinperson knows the language of Gujarati. The language of the Court is English.
4. Certificate issued by the Committee under Rule 31A needs relook and reconsideration on all aspects including above.The said certificate dated 05.05.2015 presently granted is hereby overruled.
5. Let the Committee reexamines the matter.List on 8th June, 2015.”
8. The aforesaid shows that the learned Single Judge
found that the partyinperson argued in Gujarati
whereas the entire record is in English and he
contended that he is aware of the same. It was
Page 7 of 29
R/CR.RA/201/2015 JUDGMENT
also found that when the partyinperson knows
language of Gujarati and language of the Court is
English, the certificate issued by the committee
needs to be relooked and reconsidered. It may
also be recorded that certificate of competence
to assist the Court was issued by the Committee
under Rule 31A of the Rules to the respondent
no.4.
9. In Criminal Misc. Application No.3202/15, the
main proceeding was Criminal Revision Application
No.69/15, which has been preferred by Advocate
Mr. Umesh A. Trivedi against the order dated
16.10.2014 passed by the learned Sessions Judge,
Ahmedabad in Criminal Revision Application
No.240/14. In the said Criminal Revision
Application, Criminal Misc. Application
No.3202/15 has also been preferred by the
Advocate for condonation of delay. In the said
matter, when this Court issued Rule returnable on
the aspects of condonation of delay, respondent
No.1 Dalsukhbhai Parshottambhai Patel has filed
appearance and the certificate of competence has
been issued in his favour by the committee under
Rule 31A of the Rules. The said Dalsukhbhai
Parshottambhai Patel has applied for issuance of
certificate for competence, but on 15.06.2015, it
appears that as on the very day, the above
referred order in the other matters represented
through partyinperson was passed by Hon’ble the
Acting Chief Justice on administrative side, the
Page 8 of 29
R/CR.RA/201/2015 JUDGMENT
matter remained at that stage and the certificate
of competence is yet to be issued.
10. In view of the aforesaid fact situation, the
members of the committee made submission to guide
the committee regarding issuance of competency
certificate below which the order has been passed
by Hon’ble the Acting Chief Justice for placing
the matters before the present Bench.
11. We may record that vide order dated 16.06.2015 it
was observed that considering the facts and
circumstances, the learned Advocate
General/Additional Advocate General as well as
Registrar General were directed to assist the
Court.
12. We have heard Mr. Kamal Trivedi, learned Advocate
General, Mr.Gautam Joshi for the Registrar
General of the High Court and Mr.Rangwala as well
as Mr. Dalsukhbhai Parshottambhai Patel, who
appeared as partyinperson.
13. Before we further proceed to examine the aspects
of competency to assist the Court, we need to
first consider on the aspect of language of the
High Court. Article 343 of the Constitution of
India provides for official language of the
Union. Whereas, Article 348 of the Constitution
of India provides for languages of Supreme Court
and High Court, etc. It is hardly required to be
stated that before the constitution was framed,
Page 9 of 29
R/CR.RA/201/2015 JUDGMENT
there were constitutional debates and
deliberation on various points including about
language to be used in Supreme Court and High
Courts. After deliberations constitutional
framers have finalised Article 348 of the
Constitution and the same for ready reference
reads as under:
“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 subclause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorize the use of the Hindi
Page 10 of 29
R/CR.RA/201/2015 JUDGMENT
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 subclause (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 byelaw 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.”
(Emphasis supplied)
The aforesaid shows that until the Parliament by
law otherwise provides, all proceedings in the
Supreme Court and every High Court shall be in
English. SubArticle (2) provides that the
Governor of the State may with the previous
consent of the President Authorise the use of
Hindi language or any other language in the
proceedings of the High Court having its
principal seat in that State. But such would not
be applicable to any judgment decree or order
passed or made by such High Court.
14. The Parliament has enacted the Official Language
Page 11 of 29
R/CR.RA/201/2015 JUDGMENT
Act, 1963 for providing languages to be used for
official purpose of Union for transaction of
business in Parliament under Central and State
Act and also for certain purposes in the High
Courts. Section 7 of the Official Language Act,
reads as under:
“7. Optional use of Hindi or other official language in judgements etc., of High Courts.— As from the appointed day or any day thereafter the Governor of aState may, with the previous consent of the President, authorise the use of Hindi or the official language of the State, in addition to the English language, for the purposes of any judgement, decree or order passed or made by the High Court for that State and where any judgement, decree or order is passed or made in any such language (other than the English language), it shall be accompanied by a translation of the same in the English language issued under the authority of the High Court.” (Emphasis supplied)
The aforesaid shows that the President may
authorise the use of Hindi or official language
of the State in addition to English language for
the purpose of any judgement decree or order
passed or made by the High Court, but such shall
be accompanied by a translation of the same in
English language issued under the authority of
the High Court.
15. The aforesaid are the enabling powers, but so
far as High Court of Gujarat is concerned, the
learned Advocate General after verification,
made a clear statement that no such order has
Page 12 of 29
R/CR.RA/201/2015 JUDGMENT
been passed by the Governor under Article 348
(2) of the Constitution nor any order for
authorisation has been passed by the President
for use of Gujarati language or any other
language and he further submitted that English
language is already prescribed in the
proceedings of the High Court and Supreme Court
by Article 348 (1) of the Constitution. To say
in other words, in absence of any order of the
Governor under Article 348(2) of the Constitution
or in absence of any authorisation under Section
7 of the Official Language Act, the language of
the High Court of Gujarat as per the Constitution
of India has to be English since the word used by
the Constitution is “Shall be in English
language”. Hence, it can be said that the
language of the High Court of Gujarat shall be
English unless any authorisation has been issued
under Article 348(2) of the Constitution of India
or under section 7 of the Official Language Act
by the Governor or the President, as the case may
be.
16. At this stage, we may may refer to the decision
of the Apex Court in the case of Dr.Vijay Laxmi
Sadho Vs. Jagdish reported at (2001) 2 SCC 247,
wherein the question arose before the Apex Court
as to whether the Election Petition in the High
Court under the Representation of People Act
could be maintained in Hindi or not. Paragraph
19 to 32 decision reads under:
Page 13 of 29
R/CR.RA/201/2015 JUDGMENT
“19. Article 348(1) provides :
"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) * * * *shall be in the English language."
20. Article 348(2) provides as follows:
"Notwithstanding anything in subclause (a) of clause (l), 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.
21. Rules framed by the High Court relating to trial of election petitions are only procedural in nature and do not constitute "substantive law". Those Rules have to be read alongwith other statutory provisions to appreciate the consequences of noncompliance with the High Court Rules. Article 329(b) mandates that no election to either House of Parliament or to either House of the State Legislature can be called in question except through an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature. Section 81 of the Act deals with the presentation of an
Page 14 of 29
R/CR.RA/201/2015 JUDGMENT
election petition while Section 82 deals with parties to the election petition and Section 83 with contents of such a petition.
22. Article 348 expressly deals with the language to be used in the Supreme Court and the High Courts and lays down in Article 348(1)(a) that all proceedings in the Supreme Court and every High Court shall be in the English language. Article 348(2) (supra). however, carves out an exception to the above general rule.
23. The non obstante clause with which Article 348(2) opens, unmistakably shows that the Governor of a State, with the previous consent of the President may authorize the use of Hindi or any other language in proceedings in the High Court having its principal seat in that State, save and except that "judgment, decree or order passed or made by such High Court", shall be in the English language as required by Article 348(1).
24. By a Notification dated 18th September, 1971 issued by the Governor of Madhya Pradesh, in exercise of the powers conferred by clause (2) of Article 348 of the Constitution of India, with the previous consent of the President of India, authorised the use of Hindi language in all proceedings of the High Court other than for drawing up decrees, orders and judgments of the High Court, subject to certain conditions. Under the said Notification, appeals, petitions etc. could thus, be presented in the High Cou t of Madhya Pradesh drawnup in the Hindi language, notwithstanding the provisions of High Court Rules. Rule 2(b) of the High Court Rules cannot be so construed as to render the constitutional provisions contained in Article 348(2) as 'meaningless'. Rule 2(b) of the High Court Rules has to be read along with the Notification issued by the Governor
Page 15 of 29
R/CR.RA/201/2015 JUDGMENT
on 18th September, 1971 under Article 348(2) of the Constitution and when so construed, it follows that an election petition may be filed in Hindi language and it cannot be dismissed at the threshold under Section 86 of the Act for alleged noncompliance with Rule 2(b) of the High Court Rules.
25. The question whether an election petition drawn up in Hindi language is maintainable or not came up for consideration before a learned Single Judge of the High Court of Madhya Pradesh in Election Petition No. 9 of 1980 titled Devilal s/o. Shriram Khada vs. Kinkar Narmada Prasad and others. While rejecting the challenge to the maintainability of the election petition drawn up in Hindi language, it was said :
"Now it is true that Rule 2(b) of the aforesaid Rules does provide that every election petition shall be written in the English language. But in the absence of any provision in the Act or the Rules made thereunder, non compliance with Rule 2(b) of the aforesaid Rules cannot be a ground for dismissal of the petition under Section 86 of the Act."
26. A contrary view was, however, expressed by another Single Judge of that High Court in Jai Bhansingh Pawaiya vs. Shri Madhavrao Scindia. In this case it was held that an election petition filed in Hindi language being violative of Rule 2(b) of the Ru es, relating to filing of election petitions, was not maintainable and was liable to be dismissed under Section 86 of the Act. The learned Single Judge opined :
"The Special Rules framed by the High Court, in the circumstances, taking into account the implications arising under Article 329(b) of the Constitution of India read with Section 80 of the
Page 16 of 29
R/CR.RA/201/2015 JUDGMENT
Representation of the People Act, 1951, relating to election petitions prescribing the manner for presentation of the election petition by necessary implication stand clothed with such a statutory character which could not be deemed to have been affected by an order relating to authorization contemplated under Article 348(2) of the Constitution of India so as to take away statutory rigour of the Rules prescribing a requirement of an election petition to be written in English language, numbering separately the paragraphs thereof as provided in rule 2 of the aforesaid Rules relating to election petitions."
27. The interpretation placed on rule 2 of the High Court Rules, giving it almost primacy over Article 348(2) of the Constitution, in Jai Bhansingh's case to our mind is fallacious. The learned single Judge appears to have lost sight of the position that rules framed by the High Court in exercise of powers under Article 225 of the Constitution of India are only rules of procedure and do not constitute substantive law and those rules cannot effect the import of constitutional provisions contained in Article 348(2) of the Constitution. The high pedestal on which Rule 2(b) of the High Court Rules has been placed in Jai Bhansingh's case, not only violates clear constitutional provisions but also introduces a clause in Section 86 of the Act which does not exist. The entire approach to consideration of the effect of the notification issued under Article 348(2) appears to be erroneous. That apart, the defect of not fling an election petition in accordance with Rule 2(b) of the Rules is not one of the defects which falls either under Sections 81, 82 of 117 of the Act so as to attract the rigour of Section 86 of the Act as rightly held in Devilal's case
Page 17 of 29
R/CR.RA/201/2015 JUDGMENT
(supra). Whether any other consequences may follow on account of the alleged defects would depend upon there factors to be determined at the trial of the election petition but to hold that Section 86(1) of the Act would be attracted for noncompliance with Rule 2(b) of the High Court Rules is not correct. The learned Single Judge of the High Court was right in rejecting application, I.A. No. 5957 of 1999 and holding that an election petition filed by the respondent could not be dismissed under Section 86(1) of the Act for alleged noncompliance with Rule 2(b) of the High Court Rules relating to presentati n of election petitions.
28. It appears that the earlier judgment of the learned Single Judge in Devilal's case (supra) was brought to the notice of the learned Single Judge hearing Jai Bhansingh's case. The learned Judge in the later case noticed the identical nature of the two cases, but did not share the view of the Bench in Devilal's case and a contrary view was expressed. It was observed:
"It may be noticed that although like cases should be decided alike but this principle is not in absolute rule nor of universal application. It does admit exceptions. Where there is no discussion regarding applicability of the relevant statutory provisions and the decision has been reached by a Bench in the absence of knowledge of a decision binding on it or a statute and in either case it is shown that had the Court had the said material before it, it must have reached a contrary decision, it is clearly a case of a decision per incuriam which has no binding effect. This principle does not extend to a case where if different arguments had been placed before the said Bench or a different material had been placed
Page 18 of 29
R/CR.RA/201/2015 JUDGMENT
before it, it might have reached a different conclusion." (Emphasis supplied)
29. We are unable to appreciate as to how the judgment in Devilal's case could be styled as "per incuriam".
30. That apart, the ground on which the judgment in Devilal's case (supra) has been distinguished does not stand to reason. We have not been able to appreciate the logic of the observations of the learned Single Judge in Devilal's case (supra) that the controversy in Jai Bhansingh's case was "quite different" and not confined to the applicability of section 86 of the Act alone. A reference to paragraph 41 of the judgment in Jai Bhansingh's case dismissing the election petition in limine, brings out the falacy of the "difference", as perceived by the learned Single Judge. It was observed :
"In view of what has been indicated hereinabove, I have no hesitation in holding that the present election petition as framed is not at all entertainable. Since even the limitation for filing a fresh election petition in accordance with law and in the manner prescribed has also run out, it is not possible or permissible to permit the petitioner to remove the defect in the presentation of the election petition, the present election petition in the circumstances is not at all triable." (Emphasis supplied)
31. How could it then be said that the controversy in the two cases was, "different" is not understandable?
32. We are of the considered opinion that the view expressed in Devilal's case was correct view of law and the contrary view
Page 19 of 29
R/CR.RA/201/2015 JUDGMENT
expressed in Jai Bhansingh's case does not lay down correct law.”
(Emphasis supplied)
17. We may now further proceed to examine that when
the official language of the High Court of
Gujarat is English, can the use of Gujarati or
any other language other than English language be
permitted as of right by any partyinperson or
whether use of language other than English
language can be considered by the committee under
Rule 31A of the Rules for examining the
competence to assist Court or not. Rule 31A of
the Rules reads as under:
“31A Norms for Presentation of proceedings in person by parties.
1. A Committee of two Officers of the Registry, who are working on deputation from the State Judicial Service, to be nominated by the Honourable the Chief Justice, shall scrutinize the matter/proceedings filed by PartyinPerson so as to ensure that the PartyinPerson has complied with the requirements of the Gujarat High Court Rules, 1993, and shall certify that the PartyinPerson is 'Competent' to assist the Court in person.
2. In case of a Party, who wishes to defend his matter / proceedings in person as respondent / opponent, the above Committee shall ensure and certify that such person is 'Competent' to assist the Court in person.
3. (a) If the certificate is not issued in both the cases mentioned at Norm No.(1) and (2) and the partyinperson is lawfully entitled to be referred to the High Court Legal Services Committee in accordance with
Page 20 of 29
R/CR.RA/201/2015 JUDGMENT
law, the same will be referred to the Committee for offering legal services to the concerned litigant.
(b) If the concerned litigant is not entitled under law to get assistance of Legal Services Committee, he will be asked to appoint a lawyer to represent his case.
4. The PartyinPerson shall give an Undertaking that he shall maintain decorum of the Court and shall not use objectionable and unparliamentary language during the course of hearing in the Court.
4(A) These Rules will not apply, if the concerned Court before whom the concerned litigant wants to move the matter, permits such litigant to appear in person.
Provided further that these norms will not apply in cases of applications for temporary bail, parole, furlough and habeas corpus.
[Provided further that this Rule will not apply to an Advocate having registration of the Bar Council, who intends to appear in person.]
5. The PartyinPerson shall file his matter/ proceedings with the leave of this Honourable Court by filing an application in this behalf.
6. If the PartyinPerson fails to abide by his Undertaking as above, Contempt Proceedings may be initiated against him or/and appropriate costs be imposed on him.” (Emphasis supplied)
At this stage, we may also refer to Rule 37 of
the Rules, which reads as under:
“37.Memorandum of proceedings by party may be in Gujarati or EnglishA memorandum of an
Page 21 of 29
R/CR.RA/201/2015 JUDGMENT
appeal or application presented by a party personally shall be either in Gujarati or in English.”
18. It is hardly required to be stated that the
Constitution or any provision of the Constitution
will prevail over any Act or the law made by the
Parliament or the Rules made by any Rule making
authority. If Rule 37 is to be given effect read
with the above referred constitutional provision,
it would mean the memorandum of proceedings by a
party may be submitted in Gujarati or in English,
but if it is in Gujarati, the party may be asked
to supply English translation also and if there
has no financial capacity to provide English
translation, Court may direct the English
translation to be made by the High Court and
thereafter, the matter may be considered further.
If Rule 37 of the Rules is not interpreted in
that manner, it would run counter to Article 348
of the Constitution.
19. As observed earlier, if the language of the High
Court is English and one has to consider the
effect of Rule 31A of the Rules, when the
presentation is to be made by partyinperson in
the proceedings of the High Court, it would be
obligatory for the committee to keep in mind that
the language of the High Court is English and
when any certificate is to be issued for
competency to assist the Court in person, the
requirement will be (1) the knowledge of
Page 22 of 29
R/CR.RA/201/2015 JUDGMENT
understanding English (2) the capacity to express
in English. Both will be the requirement for
examining the ability of the person to assist the
Court. To say in other words, if the person is
able to understand English and he is having
ability to express in English, he can be said to
be a person with the capacity to understand and
express in English, but if the person is able to
understand English and has no ability to express
in English, he would not meet with the
requirement to assist the Court in its official
language, which is English. Hence, both the
requirements, the ability to understand English
and ability to express in English are must before
the committee further examines the aspect of
competence to assist the Court.
20. It can hardly be said that merely because one has
the ability to understand English and ability to
express in English, he will be competent to
assist the Court. Even if the person is having
knowledge of English and ability to express in
English, he should also have clarity of thought
in his mind and the clarity of the facts of his
case. Such can be gathered by the committee,
when the committee enters into interaction with
the partyinperson in English language, and then
the committee may verify as to whether the party
inperson who is having ability to express in
English is having clarity about the factual
aspects of his case in his mind or not. We may
Page 23 of 29
R/CR.RA/201/2015 JUDGMENT
not stretch it to the extent of full knowledge of
law to assist the Court as it may be expected
from any advocate or lawyer, but unless the
partyinperson is having clarity about his case
and is able to express his case in English with
clarity, he cannot be said to be competent to
assist the Court. We may record that if a person
is not competent to assist the Court, such would
result into wastage of public time in the Court
proceedings. The minimum requirement would be
the clarity of facts about the case to be
presented in the Court.
21. It was submitted by partyinperson Mr.Rangwala
and Shri Dalsukhbhai that Gujarati is our mother
tongue and the laws are to get justice and
therefore, this Court may permit use of Gujarati
language by partyinperson and the competency
may be examined on the premise that the language
of Gujarati can be used at the time of
presentation of the case in the Court. It was
also submitted that if not Gujarati, at least
Hindi should be permitted for presentation of the
case by the partyinperson as it has been made
permissible under order of the Governor and the
Presidential authorisation in State of UP and in
State of Rajasthan. It was submitted that
otherwise, access to justice would be foreclosed
for the persons who are not having any capacity
to engage lawyer or who are having no ability to
understand English or ability to express in
Page 24 of 29
R/CR.RA/201/2015 JUDGMENT
English.
22. Whereas, the learned Advocate General and on
behalf of the High Court administration, it was
submitted that the Court may go by the
constitutional provision and if the language of
the High Court for Court proceeding is English,
in absence of any order of the Governor or the
President, Rule 31A may not be interpreted to
mean that the use of language of Gujarati and/or
the Hindi is/are permissible.
23. At this stage, we may make useful reference to
the decision of the Apex Court in the case of
Madhu Limaye and Anr. Vs. Ved Murti & Ors.
reported at (1970) 3 SCC 738, wherein Mr.Raj
Narain appearing as partyinperson in a petition
under Article 32 of the Constitution of India for
a writ of habeas corpus insisted for arguing in
Hindi though the official language of the Apex
Court was English. The Apex Court in the said
decision passed the following order
“ORDER
Mr. Raj Narain yesterday insisted on arguing in Hindi. He was heard for sometime with a view to see whether we could follow him, simply because this is a habeas petition involving the liberty of the citizen. Because of the importance of the case, we heard him for sometime, but the AttorneyGeneral, Mr. Daphtary who is opposing him and some of the members of the Bench could not understand the arguments made in Hindi yesterday. In these circumstances, it is futile to permit Mr. Raj Narain to continue
Page 25 of 29
R/CR.RA/201/2015 JUDGMENT
his 146 arguments in Hindi. He has a counsel Mr. D. P. Singh already in attendance and helping him. We suggested the following three alternatives,
(a) that he may argue in English; or (b) he may allow his counsel to present his case; or (c) he may give his written arguments in English. The language of this Court is English (see Art. 348 of the Constitution). If Mr. Raj Narain is not agreeable to these suggestions, and we understand, he is not, the only alternative for us is to cancel his intervention. We order accordingly.”
(Emphasis supplied)
The aforesaid shows that when Mr. Raj Narain
insisted for arguing in Hindi and the learned
advocate for the other side and the members of
the Bench were unable to understand his argument
in Hindi, the Apex Court provided three options
and if none was acceptable, his intervention was
cancelled.
24. In our view, even when the partyinperson is
certified as not competent to assist the Court,
but if the concerned Court before whom the
concerned litigant wants to move the matter
permits such litigant to appear as partyin
person, in the matters other than as that of the
temporary bail, parole, furlough and habeas
corpus, and if the partyinperson is other than
advocate having registration with the bar
council, the concerned Court may in a given case
find that the partyinperson may given his
Page 26 of 29
R/CR.RA/201/2015 JUDGMENT
written arguments in English, but he may not be
allowed to present his case orally in the
language other than English unless the
competence is so certified by the committee
under Rule 31A of the Rules. It is a different
matter if the Court before whom the concerned
litigant wants to move the matter may permit
such litigant to make written submissions in the
language other than English, i.e., in Gujarati,
if the learned Judge or the Hon’ble Judges on
the Bench find it appropriate to permit such
written submissions in Gujarati. In any case,
such a course may be permitted by the Court
provided other side, either advocate or other
party to the proceedings do not object to such a
course being adopted. If any objection is
raised, it would be required for the said party
inperson to submit written submissions in
English only. In any case, all such parties who
are desirous to use the language of Gujarati in
the pleadings or the petitions or the
applications submitted to the Court may be
permitted to make written submissions, but not
the oral submissions for presentation of the
case unless the certificate of competence is
issued by the committee under Rule 31A of the
Rules.
25. In view of the aforesaid observations and
discussions, we find it appropriate to concluded
Page 27 of 29
R/CR.RA/201/2015 JUDGMENT
as under:
1) The official language of the High Court of
Gujarat is English and therefore, the
presentation of the case has to be in
English and it cannot be in any language
other than English language.
2) The committee can certify the competency of
the person to assist the Court only after
minimum requirements are satisfied
a) That the partyinperson has an ability
to understand English; and
b) That the partyinperson has ability to
express in English; and
c) That the partyinperson has clarity
about his thoughts and is able to
explain his case in nutshell to the
committee in English language.
3) No party in person will be able to address
the Court other than English language and
unless his competency is so certified by the
committee.
4) However, in a given case, Court may permit
written submissions in Gujarati if it is
found by the Hon’ble Judge/s that he is able
to understand Gujarati, but in such cases,
if the partyinperson wants to address the
Court or present his case in the proceedings
Page 28 of 29
R/CR.RA/201/2015 JUDGMENT
of the Court, orally, the use of the
language has to be in English. As Rule 31A
of the Rules is not to apply to the
applicants for temporary bail, parole or
furlough or habeas corpus, if read with Rule
37 of the Rules, no further discussion may
be required in this regard. But in such
cases, whenever it is so required by the
Court, the use of language will be only
English.
26. Hence the directions and orders accordingly. All
matters now shall be considered by the committee
to reexamine the aspects of competency of the
partyinperson and to certify and/or to reject
the certification in accordance with law.
(JAYANT PATEL, J.)
(RAJESH H.SHUKLA, J.) bjoy
Page 29 of 29
Recommended