Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where a detenue filed for quashing of his detention order on the grounds of violation of constitutional mandate as laid down in Article 22 (5), a Division Bench of Siddharth Mridul and Rajnish Bhatnagar JJ., set aside the detention order as detenue is illiterate and the detention order must have been explained to him either in Hindi or any vernacular language, if he speaks or understands. Thus, the fact that he signed in English is not sufficient to form an opinion that he has full understanding of the language.

The present writ petition was filed under Article 226 read with Section 482 of Criminal Procedure Code (CrPC) seeking quashing of the impugned detention order passed by the Joint Secretary, Govt. of India u/s 3 (1) of Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 (PITNDPS) and anorder passed by the Deputy Secretary, Govt. of India u/s 9(f) of the PITNDPS confirming the detention order for a period of one year.

Counsel for detenue submitted that there was no need to detain the detenue under PITNDPS as he is already in custody in a case under the stringent provisions of NDPS Act and there is no likelihood of his release from custody in the near future.

He further submitted that the detenue being an illiterate person, the order of detention was not properly communicated to detenue as the same is in English language.

The State opposed the petition contending that the detenuestated that “CD and CDR would be seen by his advocate” which goes to show that he understood everything, having the assistance of his advocate. It was further submitted that all the documents were signed by the detenue in “English” which clearly shows that the detenue understood the contents of the documents supplied and made the representation signed by his advocate.

Placing reliance on Chaju Ram v. State of Jammu & Kashmir, (1970) 1 SCC 536, Nainmal Partap Mal Shah v. Union of India, (1980) 4 SCC 427, Haribandhu Dass v. District Magistrate, Cuttack, (1969) 1 SCR 227, the Court noted that simply because the detenue has put his signatures in English does not by any stretch of imagination shows that he understands English and as a consequence understood the grounds of detention.

The Court further noted that the manner in which the signatures of the detenue were obtained on the documents, leaves no shadow of doubt that the contents of any of the documents/detention order were explained to the detenue in vernacular or the language that the detenue understands, i.e., Hindi. The detaining authority was under an obligation to communicate to the detenue the grounds of detention effectively and fully in a language in the present case “Hindi”, which the detenue understood even if that entailstranslation of the grounds to the language known to the detenue.

Thus, the Court held that where a detenue is illiterate, the mandate of Article 22(5) would be served only if the grounds of detention are explained to the detenue in a language that he understands, so as to enable him to avail the fundamental right of making an effective representation.

[Sharafat Sheikh v. UOI, 2022 SCC OnLine Del 2725, decided on 02-09-2022]


Advocates who appeared in this case:

Mr. Tanmaya Mehta, Ms. Shreya Gupta, Mr. Anurag Sahay and Ms. Mallika Bhatia, Advocates, for the Petitioner;

Mr. Chetan Sharma, ASG with Mr. Ajay Digpaul, CGSC with Mr. Soumava Karmakar, Mr. Kamal Digpaul with Mr. Rakesh Duhan, Inspector, Narcotics Cell, Crime Branch, Advocates, for the defendant.


*Arunima Bose, Editorial Assistant has put this story together.

Legislation UpdatesStatutes/Bills/Ordinances

The Jammu and Kashmir Official Languages Bill, 2020 received Presidential Assent on 26-09-2020.

The Jammu and Kashmir Official Languages Act, 2020

FEATURES:

Official languages of Union territory [SECTION 3]

The Kashmiri, Dogri, Urdu, Hindi and English languages shall be the official languages to be used for all or any of the official purposes of the Union territory.

English may continue to be used in the union territory for those administrative and legislative purposes for which it was being used before the commencement of the Act.  

Promotion and development of regional languages [SECTION 4]

The Administrator may, for the promotion and development of regional languages of the Union territory, take necessary steps to strengthen the existing institutional mechanisms such as the Academy of Art, Culture and languages in the Union territory.

The institutional mechanisms shall make special efforts for the promotion and development of Gojri, Pahari and Punjabi languages.

Read the detailed amendments here: Jammu and Kashmir Official Languages Act, 2020


Ministry of Law and Justice

Patna High Court
Case BriefsHigh Courts

“Viewing Hindi or English as the only language does not seem to be the Constitutional mandate and it is with this end in view that our Constitution framers chiselled and shaped Article 348 of the Constitution of India.”

Patna High Court: The Three-Judge Bench of Amreshwar Pratap Sahi, CJ., Ashutosh Kumar and Rajeev Ranjan Prasad, JJ., was hearing a reference that came to this Bench from a writ petition (seeking issuance of writ of habeas corpus challenging a detention order) drafted in Hindi.

The instant reference came to this Court when a Division Bench of this Court in the present case, was in disagreement with another Division Bench judgment in Binay Kumar Singh v. Bihar State Electricity Board, 2010 SCC OnLine Pat 2286 wherein it was held that there is no prohibition under Article 226 and 227 of the Constitution of India, for institution of an application in Hindi.

The issue under reference was whether a writ petition under Article 226 and 227 of the Constitution of India could be filed in Hindi language and Devanagari script.

The issue raised before the Bench related to interpretation of the language employed in Notification No. 3/Hi 3-5043/68-185-Ra dated 09-05-1972 which “authorises the alternative use of Hindi language in the High Court in following proceedings:- (1) For arguments in civil and criminal cases before Patna High Court. (2) For submitting application with affidavits: However English shall continue to be used for applications submitted under Article 226 & 227 of the Constitution of India as an exception. Annexure attached to the applications shall not be required in English. Similarly, application connected with the tax reference shall continue to be submitted in English as well. In Special cases the Patna High Court may make an order to translate Hindi papers into English….”

The Court delivered three separate judgments. But Kumar and Prasad, JJ. in a ‘post-script’ endorsed the opinion of Sahi, CJ.

Amreshwar Pratap Sahi, CJ.

While spoken language in the Court includes native vernacular expressions but written language in the High Court was governed by the Rule 1 of Part-II under Chapter III of the Rules of the High Court at Patna which states that “Every application to the High Court shall be by a petition written in the English language.”

Article 343 of the Constitution states that Hindi shall be the official language of the Union; but Article 348 states that all the proceedings in the Supreme Court and every High Court shall be in English language, subject to Article 348(2) which categorically authorizes use of Hindi language or any other language for any official purposes in proceedings in the High Court.

He remarked that “even though the propagation of Hindi as a National language has seen a growth and adoption in the official work of the Union as well as a large number of the States, but so far as the judiciary is concerned, the use of the English language in all the High Courts of the Country as well as the Supreme Court continues to be English. The wide availability of legal expressions in the English language has not yet been perfectly substituted in any other regional language including Hindi.” He further expressed that “use of language is to be a matter of practice and to be inculcated from childhood to adolescence and beyond. This includes the use of language at home, in school and in the official curriculum.”

He opined that the general acceptability of the English language obligates its usage in order to maintain a uniformity of expression of ideas. He also pointed out that the use of Court language, particularly in higher judiciary, is of significance as it involves interpretation of laws that have come into existence with a global participation between different countries throughout the world.

It was opined that the introduction of a language to be used in Courts is to be directly in tune with the opportunities given to the students of law to educate; and the curriculum prescribed by the Bar Council of India clearly defines the medium of instruction in all law courses as English. The practicality of the issue at hand needs to be judged from the point of view of adaptability of Hindi by following it even in courses imparted by law colleges.

He observed that pleadings before a Writ Court in written language have to be understood in the authoritative language for an additional reason because the High Court under Article 215 of the Constitution is a Court of record. The wide nature of powers exercised by the High Court engulfs within itself the entire canvas of the population which may not include those which are yet to acquire any proficiency in the Hindi language. It was for this reason that the maintenance of records in the English language, was incorporated in the High Court Rules.

The Notification was issued in the exercise of powers under Article 348(2) of the Constitution, and thus it did not suffer from any infirmity. It was opined that the Apex Court in Dr Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247 had categorically held that even though the High Court Rules are framed in exercise of power under Article 225 of the Constitution of India yet they do not occupy a higher pedestal that the Constitutional mandate under Article 348 (2) and the Notification issued thereunder.

Sahi, CJ. held that Hindi has not been provided as an alternative language in respect of writ petitions under Article 226 and 227 of the Constitution of India and tax references. According to the plain meaning of the words used in the Notification, such pleadings presented for official use have to be necessarily in English and the same is fortified by the Rules of the High Court. However, he opined that there was no express prohibition regarding use of Hindi to the exclusion of English. It is open to a litigant to present his pleadings in Hindi but the authoritative text of it has to be in English to the extent as provided for in the Notification.

He observed that the question was not that of conflict of supremacy of any language but its viability and purpose as a use of Court language in certain classes of petitions. From that point of view, the Constitutional mandate has been always treated Hindi as an official language. For Court proceedings Hindi is practically a parallel language and is also spoken in the Patna High Court. There is no statutory or Constitutional bar for advancing oral submissions in Hindi. Thus, Hindi is not an alternative language but a language available as an elective option at the privilege of the user in Court proceedings subject to the limitation as contained in the Notification. Reliance in this regards was placed on Swaran Singh Bagga v. N.N. Singh, 1995 SCC OnLine Pat 274 where it was observed that there is no bar for any person to file an application in Hindi nor there is any bar for any person to advance argument in Hindi.

Sahi, CJ. remarked that that English language was being primarily used for training legal brains not only because of its historical past but also because of the global impact of the language of English in today’s context when laws from all over the world are being referred to in courses of study including International Law, Commercial Law and the like the translation of this massive global information into Hindi Devnagari script may not be possible in the near future nor such effective translation was available so as to train legal minds in Hindi. The voluminous material of legislations, documents, curriculum, sources of law, etc. in English could be translated overnight with exactitude for the use in educational institutions or even in Courts of law, as all of it formed a substantial basis of both legal education and continuing legal education. Thus, the use of material in English for advancing the cause of justice cannot be substituted overnight.

Sahi, CJ. approved the reasoning of Swaran Singh Bagga as correct and held that “so long as the notification dated 09-05-1972 was not modified, rescinded or substituted in any form, a petition under Article 226 and 227 of the Constitution of India or a tax reference can be filed in Hindi but it would have to be accompanied by an English version as well, which shall be the authentic version of the petition.

Ashutosh Kumar, J. held that a writ petition under Articles 226/227 of the Constitution of India can be filed in Hindi language also.

He opined that on reading the notification as a whole, the necessity of permitting use of Hindi as an alternative language, in terms of Article 348(2) and in obedience to the directives in Articles 350 and 351 of the Constitution was reflected.  He parted with the observation that “in the present day scenario, with the growth of education and the impact of globalization, it can hardly be said that English is not intelligible to the masses.”

Rajeev Ranjan Prasad, J. held that an application under Article 226 and 227 of the Constitution of India may be filed in Patna High Court only in English language, directing the State Government to look into the Special Directives as contained in Article 351 of the Constitution of India and come out with appropriate notification.

His opinion was based on perusal of the Constituent Assembly Debates which reflected division of opinion with respect to national language. He observed that English common law was the basis of Indian legal system and, to that end, the English language had been a useful medium of thought and expression. If the High Court adopts a local language, then it would be difficult for High Courts to cite judgments of other High Courts. Difficulty would also arise in the functioning of Supreme Court if the High Courts were to adopt different languages.

Concluding their opinions, Prasad and Kumar, JJ. in a ‘post-script’ endorsed the opinion of the Sahi, CJ. and held that “We, after having revisited our respective opinions, have come to the conclusion that the interpretation of the notification of 1972 given by Hon’ble the Chief Justice serves the twin purposes of pandering to the aspirations of preserving and promoting Hindi language and at the same time maintaining the exclusivity of the court language to English, for the benefit of the accessibility to an ever burgeoning case materials, case laws and research works in the area of law, which is mostly in English language and which is necessary in the background of the diverse, multicultural and multi linguistic country that we are in.”[Krishna Yadav v. State of Bihar, 2019 SCC OnLine Pat 594, Order dated 30-04-2019]

Hot Off The PressNews

As reported by ToI, alongside Arabic and English Abu Dhabi included “Hindi” as the third official court language in order to improve access to justice.

Abu Dhabi Judicial Department stated that it has extended the adoption of interactive forms of statement of claims filed before Courts by including Hindi alongside Arabic and English. This is aimed at helping Hindi speakers to learn about litigation procedures, their rights and duties without a language barrier.

[Source: Times of India]