Only English is permissible in High Court proceedings: Gujarat High Court (Judgment)

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

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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

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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

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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

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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.


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

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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.


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

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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

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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

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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,

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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

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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

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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

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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:

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“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

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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

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http://indiankanoon.org/doc/928281/


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

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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

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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Only English is permissible in High Court proceedings: Gujarat High Court (Judgment)

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