The High Court held that Article 348(1) and (2) of the Constitution of India r/w Rule 31A and 37 of the Gujarat High Court Rules, 1993 clearly lay down that no language other than English could be used in a proceeding before it since the Language of the Court under Article 348(1) is English and Article 348(2) allows any other language to be used only if there is authorization by the Governor with previous consent of the President of India to this effect. However there is no such previous authorization of the Governor, in effect, in State of Gujarat
The Court also relied on various Supreme Court judgments to drive home its point viz. Dr. Vijay Laxmi Sadho v. Jagdish (2001) 2 SCC 247, where the Governor of M.P., under Article 348(2), with the consent of the President, had authorized use of Hindi language in the court proceedings. So the language could be thus used.
However, in Madhu Limaye v. Ved Murti (1970) 3 SCC 738, 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 Supreme Court provided three options and since none was acceptable to him, his intervention was cancelled.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Criminal Reference No. 4 of 2015 in Criminal Revision Application (for Maintenance) No. 201 of 2015,
Decided On: 08.07.2015
Manish Kanaiyalal Gupta Vs. State of Gujarat and Ors.
Hon'ble Judges/Coram:
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 party-in-person Manish Kanaiyalal Gupta under section 397 read 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 party-in-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 party-in-person.
As the party-in-person proceeded to conduct and argue the matter, he fairly conceded that he was not well-versed 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.
Party-in-person, however stated, that he has brought with him a person named Mukeshkumar Lakshmanbhai Vankar who, stated party-in-person further, is experienced with the proceedings of the Court and knows language of the Court and that he may act as a Mediator. Party-in-person requested the Court that while he would conduct the matter, the said other person would explain the argument and fill-up communication gap between the party-in-person and the Court. The party-in-person 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 directed to pay maintenance to wife.
As the party-in-person 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 party-in-person struggled like anything. His struggling was expected in as much as he had conceded that he did not know Gujarati language.
The entire scenario created before the Court by the party-in-person 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 party-in-person 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 super-added by the dramatic request of the party-in-person allowing him to be assisted by another individual to interpret and explain to the Court the arguments and submissions of party-in-person. The certification granted by the Committee certifying the party-in-person competent to appear and conduct the matter requires re-examination. 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 party-in-person under 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 party-in-person, the certificate has been issued by the committee under Rule 31A of the Rules that the party-in-person 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 party-in-person in the course of his submission stated that the Committee which examined him for the purpose of Rule 31-A 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-in-person is in English language.
If the statement and submissions of party-in-person 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 party-in-person.
Let the Committee re-examine competency under Rule 31-A of the Gujarat High Court Rules, 1993."
6. The aforesaid shows that when the statement was made by the party-in-person 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 re-examine 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 party-in-person and 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:
"Party-in-person respondent No. 4 appears.
2. When the party-in-person 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 31-A of the Gujarat High Court Rules, 1993.
3. This is the second instance noticed and came across by this Court that the party-in-person 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 31-A of the Rules, was seen, it was stated that the party-in-person knows the language of Gujarati. The language of the Court is English.
4. Certificate issued by the Committee under Rule 31-A needs re-look 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 party-in-person argued in Gujarati whereas the entire record is in English and he contended that he is aware of the same. It was also found that when the party-in-person knows language of Gujarati and language of the Court is English, the certificate issued by the committee needs to be re-looked 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 party-in-person was passed by Hon'ble the Acting Chief Justice on administrative side, the 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 party-in-person.
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, 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,(2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorize 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:
(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.
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 sub-clause (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 bye-law referred to in paragraph (iii) of that sub-clause, 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. Sub-Article (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 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 a State 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 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 refer to the decision of the Apex Court in the case of Dr. Vijay Laxmi Sadho v. Jagdish reported at MANU/SC/1463/2001 : (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:
"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-20. Article 348(2) provides as follows:--
(a) all proceedings in the Supreme Court and in every High Court,shall be in the English language."
(b) * * * *
"Notwithstanding anything in sub-clause (a) of clause (1), 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: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 non-compliance 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 election petition while Section 82 deals with parties to the election petition and Section 83 with contents of such a petition.
Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.
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 Court of Madhya Pradesh drawn-up 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 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 non-compliance 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 v. 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 v. 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 Rules, 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 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 (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 non-compliance 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 non-compliance with Rule 2(b) of the High Court Rules relating to presentation 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 before it, it might have reached a different conclusion."29. We are unable to appreciate as to how the judgment in Devilal's case could be styled as "per incuriam".
(Emphasis supplied)
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 fallacy 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 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 party-in-person 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:
"31-A 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 Party-in-Person so as to ensure that the Party-in-Person has complied with the requirements of the Gujarat High Court Rules, 1993, and shall certify that the Party-in-Person 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 party-in-person is lawfully entitled to be referred to the High Court Legal Services Committee in accordance with 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 Party-in-Person 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 Party-in-Person shall file his matter/proceedings with the leave of this Honourable Court by filing an application in this behalf.
6. If the Party-in-Person 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 English-A memorandum of an 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 party-in-person 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 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 party-in-person in English language, and then the committee may verify as to whether the party-in-person 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 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 party-in-person 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 party-in-person 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 party-in-person 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 party-in-person 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 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. v. Ved Murti & Ors. reported at MANU/SC/0145/1970 : (1970) 3 SCC 738, wherein Mr. Raj Narain appearing as party-in-person 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 Attorney-General, 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 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 party-in-person 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 party-in-person, in the matters other than as that of the temporary bail, parole, furlough and habeas corpus, and if the party-in-person is other than advocate having registration with the bar council, the concerned Court may in a given case find that the party-in-person may given his 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-in-person 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 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 party-in-person has an ability to understand English; and3) 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.
b) That the party-in-person has ability to express in English; and
c) That the party-in-person has clarity about his thoughts and is able to explain his case in nutshell to the committee in English language.
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 party-in-person wants to address the Court or present his case in the proceedings 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 re-examine the aspects of competency of the party-in-person and to certify and/or to reject the certification in accordance with law.
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