The Constitution of India confers various powers on High Court which are provided under Articles 225 to 228, of which the powers conferred under Article 226 and 227 are extraordinary in nature and are said to be endowed upon the High Court to ensure proper and effective administration of justice. The nature and the scope of the powers conferred under Articles 226 and 227 respectively, is different and distinct from one another. However, today it can be seen that most of the petitions are presented before the High Court, seeking relief either under Article 226 or Article 227 are filed in oblivion of the existing distinction between the two Articles and the orders are passed by the Court in ignorance of the law governing the jurisdiction. The Hon’ble Supreme Court of India has time and again deprecated such practices. It is relevant here to reiterate the observations of Hon’ble Supreme Court in Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil 2010(8) SCC 32 thereby cautioning the Courts to honour the constitutional provisions governing its jurisdiction, same are reproduced as follows:

`80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (AIR 2003 SC 3044 (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of Civil Procedure Code has been curtailed. In our view, even if the scope of Section 115 Civil Procedure Code is curtailed that has not resulted in expanding High Court’s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

81. As a result of frequent interference by Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.

82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon’ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly’

Thus, in the light of the aforesaid, the present Article endeavors to elicit the differences between Article 226 and 227 respectively.

Nature of Jurisdiction

The High Court exercises original jurisdiction under Article 226 of the Constitution. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. The High Court has been vested with the power to issue to any person or authority, including in appropriate cases, any Government within the jurisdiction of the High Court, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The power under Article 226 is available not only for the enforcement of Fundamental rights, as conferred under Part-III of the Constitution, but also for the enforcement of legal rights. It is pertinent to mention here that the power under Art. 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution and being Constitutional power, it not fettered by anything contained in any statutory provision.

The remedy under Article 226 is pre-eminently a public law remedy and it is available against a body person performing a public law function and is not generally available as a remedy against private wrongs. It is used primarily for the enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their powers. However, under our Constitution, Article 226 is couched in such a way that an order or writ can also be issued against a private authority or a person. However, such private authority or person must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function only.^[1*] It is pertinent to mention that the writ jurisdiction cannot be made a forum for adjudicating civil rights, because in cases of disputes as to civil rights, writ proceedings cannot be a substitute for a civil suit, where the jurisdiction is very wide and plenary.^[2*]

[1* Binny Ltd. v. V. Sadasivan 2005(6) SCC 657

[2* P.R. Muralidharan v. Swami Dharmananda Theertha Padar, (2006) 4 SCC 501.]

As stated aforesaid, the jurisdiction under Article 226 is the original jurisdiction of the High Court. Even if the decision of a tribunal is challenged in writ petition it would be the original and initial jurisdiction of the court and it is not a continuation of the proceedings of the earlier court or tribunal. It is because of the fact that it is different from appellate jurisdiction wherein the facts of the case and appreciation of evidence have to be re-examined. However, the only thing which is important, to be seen by the court in writ jurisdiction, is the appreciation of application of law and the jurisdiction and competency of such application. Therefore, the position of the court is that of a sentinel. Even if a wrong appreciation of fact has led to a wrong conclusion by the lower court or tribunal, the court may not give its decision on this issue and such issues are left for the appellate court to take appropriate decision if approached by the aggrieved party.

Article 227 of the Constitution confers `Power of Superintendence’ on the High Court. The High Court exercises superintendence over all Subordinate Courts situated within its jurisdiction by virtue of Article 227 of the Constitution. As per Article 227, the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. The power of Superintendence of the High Court under this Article is not confined to administrative Superintendence only, but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals inferior to the High Court have done what they were required to do. The Constitution Bench of Hon’ble Supreme Court of India in Waryam Singh v. Amarnath, AIR 1954 SC 215, after a giving a detail account of history of Article 227, observed as follows:

13. Re. 2.- The material part of Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.

The above decision makes it clear that the jurisdiction under Article 227 is neither original nor it is appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.^[3*]

[3* Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil, 2010(8) SCC 32.]

Historical Background

For the better understanding of the difference between the two Articles, it is imperative to look at the evolution of the two distinct powers which were exercised by the High Courts. The writs are originated in the English Judicial System from the orders passed by King’s bench in England. It used to be issued on a petition presented to the king in council for exercise of the extra-ordinary judicial powers in a particular matter. The writ was issued in such cases which did not fall under any of the fixed remedies and were beyond the jurisdiction of the common law courts. In India, prior to the Constitution, only three High Courts i.e. Calcutta, Bombay and Madras were empowered to issue the writs and the other High Courts in India had no such power as they were newly created under section 16 of the High Courts Act, 1861 and thus did not enjoy the powers conferred to the presidency Courts. The writ jurisdiction of the High Courts was only limited to their original civil jurisdiction, which they enjoyed under section 45 of Specific Relief Act, 1877. Therefore, the power to issue writs was truncated and pruned. It is pertinent to mention that even in common law, the writ has limited scope, however, the framers of constitution retained the concept of writs as such, but enlarged the scope in application by conferring the power on Supreme Court under Article 32 for enforceability of fundamental rights and on High Court under Article 226 for the Fundamental as well as legal rights. Therefore the power to issue writ underwent a sea-change and has been further expanded through the judicial pronouncements.

The history of Article 227 has been elaborately explained by the Constitutional Bench of Hon’ble Supreme Court of India Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215 and in Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil 2010(8) SCC 32. The power of superintendence owes its origin to the supervisory jurisdiction of King’s Bench in England. The presidency Courts of Calcutta, Madras and Bombay were given the power of superintendence similar to that as was exercised by Kings Bench in the English Law. The High Courts were conferred with jurisdiction of superintendence under section 15 of Indian High Courts Act, 1861, which reads as follows:

“15. Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its Appellate Jurisdiction, and shall have Power to call for Returns, and to direct the Transfer of any Suit or Appeal for any such Court to any other Court of equal or superior Jurisdiction, and shall have Power to make and issue General Rules for regulating the Practice and Proceedings of such Courts, and also to prescribe Forms for every Proceeding in the said Courts for which it shall think necessary that a form be provided, and also for keeping all Books, Entries, and Accounts to be kept by the officers, and also to settle Tables of Fees to be allowed to the Sheriff, Attorneys, and all Clerks and Officers of Courts, and from Time to Time to alter any such Rule or Form or Table; and the Rules so made, and the Forms so framed, and the Tables so settled, shall be used and observed in the said Courts, provided that such General Rules and Forms and Tables be not inconsistent with the Provisions of any law in force, and shall before they are issued have received the Sanction, in the Presidency of Fort William of the Governor-General in Council, and in Madras or Bombay of the Governor in Council of the respective Presidencies.“

Later on under the Government of India Act, 1915 section 107 was included which endowed the High Courts with the similar powers. Section 107 was similar to the present Article 227, only difference is that by virtue of Article 227 the power of superintendence was extended to the Tribunals as well. Section 107 was incorporated as it is in Government of India Act, 1935, however a new sub section (2) was introduced which provided that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. However, this sub section was omitted from Article 227, thereby implying that the intention of the Constitution fore fathers was to give ample power to the Courts vis-a-vis the superintendence not only administrative but also judicial.

It is pertinent to note that the historical background would show that the nature of Article 226 and 227 is totally different and both the powers cannot be exercised together. As is observed by Hon’ble Supreme Court in Shalini Shyam Shetty (Supra) that `no writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the Constitutional position. No rule of any High Court can amend or alter this clear Constitutional scheme.‘

Objective and Scope of Article 226 and 227

The perusal of the Articles 226 and 227 would show that the objective and nature of the two is unlike and poles apart. Article 226 is meant for the protection of individual grievance and is normally exercised when a person is affected due to infringement of some fundamental or statutory right. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed exdebito justicia or as a matter of right. It is couched in the widest possible terms and the power conferred therein can be exercised when there is any act which is against any provision of law or violates constitutional provision and when recourse cannot be had to the provisions of the Act for the appropriate relief. Though the powers of the High Court under Article 226 are discretionary and no limit can be placed on the discretion, however the power of the High court is subject to certain self-imposed conditions, which are necessary so as to ensure that the power is not arbitrarily used. One such limitation is that the High Court does not sit or act as Appellate Authority over the actions of the subordinate authorities or courts. The power of judicial review under Article 226 is not directed against the decision but is confined to the decision making process. Judicial review is not an appeal from a decision but a review of the manner in which decision is made.^[4*] However, while examining and scrutinising the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. The Hon’ble Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque and ors. AIR 1955 SC 233, while discussing the scope of Article 226 held that the Court while exercising jurisdiction under Article 226 may annul or set aside the act, order or proceedings of the subordinate authority, but cannot substitute its own decision in place thereof.

[4* Durga Das Basu, Shorter Constitution of India Vol. 2 14th Edition 2009 pg 1192]

On the other hand when we talk about the power of superintendence of the High Court, the very purpose and object of such power distinct it from Article 226. The supervisory jurisdiction is exercised sparingly only for keeping the Subordinate Courts within the bound of their authority and is confined only to see whether an inferior Court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of record, much less an error of law. It is imperative to mention that the jurisdiction under Article 227 cannot be exercised in the “cloak of an appeal in disguise”, implying that where the statute bans the exercise of the revisional powers it would require very exceptional circumstances to warrant interference under this article since the power of superintendence was not meant to circumvent statutory law. Article 227 does not vest the High Court with limitless power which may be exercised at the Court’s discretion to remove the hardship of particular decisions. The power of superintendence it confers is a power of a known and well-recognised character and should be exercised on those judicial principles which give it its character.^[5*] The High court exercises the power as custodian of justice and for vindication of its position as the highest judicial authority in the State. The exercise of jurisdiction under Article 227 is entirely discretionary and no person can claim it as a matter of right.

[5* Dalmia Jain Airways Limited v. Sukumar Mukherjee, AIR 1951 Calcutta 193]

As contrary to the exercise of power under Article 226, wherein the Court can only set aside or annul the order, the Court while exercising the power under Article 227 may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.^[6*] However, at the same time it is pertinent to refer to the constitutional Bench judgment of Hon’ble Supreme Court in Nagendra Nath Bora and another v. Commissioner of Hills Division and Appeals, Assam AIR 1958 SC 398, wherein the Court held that, `The powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Thus it is clear that as against the scope of Article 226, the power under Article 227 can be exercised only if there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals.^[7*]

[6* Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil, 2010(8) SCC 329]

[7* Jodhey and others v. State through Ram Sahai, reported in AIR 1952 Allahabad 788]

The distinction in the scope of powers becomes all the more relevant in view of the fact that from an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an Intra Court appeal is maintainable, however, no appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court’s power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

Maintainability of the petition

Another point necessary to distinguish the two articles, is that of maintainability of the petition filed under them. As far as Article 226 is concerned it is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. However, the private parties acting in collusion with State can be respondents in a writ petition and under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. The writ petition is maintainable against the order passed by the statutory authorities and for enforcement of fundamental or legal rights. However, no writ petition is maintainable against the judicial orders of the civil court.^[8*]

[8* Radhey Shyam v. Chhabi Nath 2015(5) SCC 423]

On the other hand judicial orders can be assailed under Article 227 of the Constitution. As can be inferred from the discussion above that the scope of exercise of power of the Court under Article 227 is limited one, it is necessary to refer to the decision of Hon’ble Supreme Court in Sadhana Lodh v. National Insurance Co. Ltd., 2003(1) R.C.R.(Civil) 772, wherein the Court observed that, “Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution.”

On a proper appreciation of the wide and unfettered power of the High Court under Article 226 and 227, it transpires that both confers wide discretionary power on the High Court and since, the constitutes the basic structure of the Constitution, hence cannot be curtailed by any Statute. However, at the same time it is important to understand and keep in mind the basic difference between the two as the former confers plenary powers to issue writs and directions for protection of individual grievances and the latter is exercised to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

“You can never understand one language until you understand at least two.” – Geoffrey Willans

In today’s competitive world, the legal professionals and the litigants expect that their concerns are communicated and conveyed through effective ideas and expressions before a Court of law in a language that fulfils the duality of communication and clarity of understanding. The genius of any human expression emanates from the spark that is ignited by ideas, whatever be the language employed to communicate the same.

The language used in Courts in India has seen a transition over centuries shifting from the use of Urdu to Persian and Arabic scripts during the Mughal period which continued in subordinate courts even during the British Rule. The British introduced a codified system of law in India with English as the official language. Post-independence, Article 343 of the Constitution of India provides that the official language of the Union shall be Hindi in the Devanagari script. However, it mandated that the English language will continue to be used for all official purposes of the Union for 15 years from the commencement of the Constitution of India. It further provides that the President may, during the said period, by order authorize the use of the Hindi language for any official purpose of the Union, other than the English language. Article 345 provides that the Legislature of the State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of the State. Article 348 (1) of the Constitution of India provides that all proceedings in the Supreme Court and each High Court shall be in the English language unless the Parliament provides otherwise by law. Article 348(2) allows the Governor of the State, with the previous consent of the President, to authorize the Hindi language or any other language to be used for any official purposes of the State in proceedings in the High Court.

In 1963, the Official Languages Act was enacted, which provided that notwithstanding the expiration of the period of 15 years as provided in the Constitution, the English-language may be continued to be used in addition to Hindi language for all official purposes and transaction of business in the Parliament. Section 7 of the Act, states that the use of the Hindi or official language of a State, in addition to the English language, may be authorized with the consent of the President of India, by the Governor of the State for purpose of judgments, decree or order made by the High Court of that State. The conclusion derived from the collective reading of Article 348 of the Constitution and the Official Languages Act, 1963, is that English continues to remain the actual official language with respect to the Acts of Parliament and the Courts.

Indian people speak as many as 22 major languages written in 13 different scripts, with over 720 dialects. The official Indian languages are Hindi and English, which are widely spoken and recognized. In addition, various states in India have their official local language and this linguistic diversity is one of the unique features of our democracy. However, the plan to make Hindi the only official language of the country has met with stiff resistance in many parts of the country. Thus, in combination with other local official languages in the state, English and Hindi continue to be used today as major official languages. The Eighth Schedule of the Constitution of India specifies the different Indian languages recognized as official languages of different areas in the country.

As already stated, India being a country of a melange of cultures, time and again call for weeding out English from our legal system has been raised. However, English is so deeply embedded in our system that the idea to gradually do away with it would appear to be more of an illusion. No doubt, every litigant in the country is entitled to be able to understand the court language to comprehend the court proceedings, however, the disadvantages that we are likely to face on eliminating the English language are as follows:

1. The entire education system would need an overhaul, right from the primary level to professional courses. Interestingly, the Bar Council Rules of Legal Education in India, 2008 as well as the draft rules of 2019 provide English as the medium of imparting legal education in India.

2. Most of laws, statutes, and judgements are in English. First, the translation will have to be exhaustive and accurate. Secondly, the divergence between different versions in different languages would lead to ambiguous interpretations of legal provisions. In such cases, multilingualism would become a part of the problem instead of the solution.

3. A variety of court languages will result in delays in decisions of cases. Under the National Transfer Policy, as per Article 222 of the Constitution of India, the Hon’ble judges are transferred from one court to another interstate and thus may not be well conversant with the local language. In such a situation more time will be consumed in hearing of the cases due to translations, interpretation and trying to understand the local language.

4. Various legal maxims are in Latin and may have no corresponding terms in Indian languages. Local languages are further devoid of legal terminology and limited written materials such as dictionaries, and glossaries are available.

5. The language in which communications between different states, or between the Union Government and a state or a person takes place is usually English.

6. Change of court language to local language would hamper the practice of the lawyers as most lawyers are trained to work and argue in English. Moreover, clients who may not be conversant with the local dialect would hesitate to trust the lawyers. Further, the lawyers who are not well conversant with the local languages of other states will be confined to their local courts and state only.

7. A multilingual legal system is likely to increase the cost of litigation merely due to the sheer volume of the translation work involved, besides other difficulties.

8. Still further, the nature of economic and industrial development taking place in India with the aid of foreign investment, promoting local languages and phasing out English in Courts would again have a discouraging effect on investors. Due to international agreements, Courts are required to consider and interpret International laws which are predominantly in English.

The Law Commission of Indian on “Feasibility of Introduction of Hindi as Compulsory Language in the Supreme Court of India”, Report No. 216, noted as follows:

“i) Language is a highly emotional issue for the citizens of any nation. It has a great unifying force and is a powerful instrument for national integration. No language should be thrust on any section of the people against their will since it is likely to become counter-productive.

ii) It is not merely a vehicle of thought and expression, but for Judges at the higher level, it is an integral part of their decision-making process. Judges have to hear and understand the submissions of both the sides, apply the law to adjust equities. Arguments are generally made in higher courts in English and the basic literature under the Indian system is primarily based on English and American text books and case laws. Thus, Judges at the higher level should be left free to evolve their own pattern of delivering judgments.”

Despite the disadvantages referred to above, a multilingual legal system can be adapted in some form at par with the changing times and evolution of the Indian society. States like Bihar, Uttar Pradesh, Madhya Pradesh and Rajasthan have been permitted to conduct proceedings in their High Courts in Hindi as the official language. On the other hand, the Supreme Court of India rejected the proposal of allowing the States of Chhattisgarh, Gujarat, Tamil Nadu and Karnataka for permission to conduct court proceedings in local languages. Although in Tamil Nadu, lawyers in the High Court are invariably allowed to argue in Tamil language. Nevertheless, subordinate courts in India extensively conduct court proceedings like pleadings, recording of evidence etc. in the local language along with English as an indispensable language.

In the Parliament, simultaneous interpretation service is available in both the Houses providing a live interpretation of the speeches made by Members and Ministers in any Indian language into English and Hindi. Even the Hon’ble Supreme Court has realized the importance of multi linguistic system and in 2019 have provided an option for “Vernacular Judgments” on the Supreme Court’s website in Assamese, Bengali, Hindi, Kannada, Marathi, Odia, Tamil and Telugu and Urdu. The translation of judgements is made available in labor matters, Rent Act matters, land acquisition and requisition matters, service matters, compensation matters, criminal matters, family law matters, ordinary civil matters, personal law matters, religious and charitable endowments matters, simple money and mortgage matters, eviction under the Public Premises (Eviction) Act matters, land laws and agriculture.

Internationally, Abu Dhabi has included Hindi as the third official language to be used in its courts, besides Arabic and English, as a large part of the immigrant population is Hindi speaking there. Recently, the Haryana Government amended the Haryana Official Language Act, 1969 by introducing The Haryana Official language (Amendment) Act of 2020, which mandates Hindi as the official language in subordinate courts and tribunals of the state. Section 3-A in the amending Act reads as under:

“3-A. use of Hindi in Courts and Tribunals: (1) In all the civil courts and criminal courts in Haryana subordinate to the High Court of Punjab and Haryana, all revenue courts and rent tribunals or any other court or tribunal constituted by the state government, work shall be done in Hindi language.“

In May 2020, the Governor of Haryana has also recommended to the President of India, with reference to Article 348 (2) of the Constitution of India for his consent, which will authorize the use of the Hindi language in the High Court also. Recently the said notification was a subject matter of challenge in the Supreme Court, however, the court refused to interfere in the matter and allowed the petitioners to withdraw the petition. The bench comprised of Chief Justice S.A. Bobde and Justice A.S. Bopanna and Justice Hrishikesh Roy questioned the petitioners as to what was wrong with the law as around 80% of the litigants do not understand English and observed as under:

“There is nothing wrong in Hindi as the official language of subordinate courts in some states. Even, during the British Rule, the recording of evidence was doing in vernacular language,“

Thereafter a petition has now been filed in the Punjab and Haryana High Court in CWP 8277 of 2020 titled as Sameer Jain and Others v. State of Haryana and Another and the matter is now pending after notice to the respondent State.

It is important to note that the Court of Justice of the European Union is a successful multilingual institution that can be studied by lawmakers in India. Any of the 24 EU official languages may be the case language, although, French is the working language. At the same time, decisions of courts are published in European court reports in all official languages. The courts have a dedicated department for translation which employs law experts and linguists as translators who are required to have complete knowledge of the case being heard. Immediate interpretation and translations are provided at the time of hearing in European Union courts as is needed.

The Court, in the case of Prabandhak Samiti and Ors. v. Zila Vidyalaya Nirikshak, Allahabad and Ors. reported in AIR 1977 All. 164, correctly spelt out the dilemma we are facing today while observing as under:

“4. But the language of the people ultimately replaced the language of the upper class even in the law courts of England. The language which had entered into the life of the British people was English and none could resist it entirely. Law, as Maitland has said is the point where life and logic meet. Therefore, French had at last to give way to English in spite of the former’s superiority in the qualities of precision and richness of technical terms. Ultimately by the Act of 1731, which was passed in the period of the complete supremacy of Walpole, the use of Latin in the law courts was abolished in England.

5. In India we are witnessing a somewhat similar spectacle. The traditionalists contend that “English has today become a part of the warp and woof of Indian thought and language and of the culture of a considerable number of Indians”. A member of the Parliament recently stated that “English is the language of the Constitution, the language of many of the lower Courts, the High Courts and the Supreme Court, the only authoritative language of the Legislature and the only language in administrative, judicial, and educational spheres.” On the other hand, the protagonists of the divine Sanskrit and its beauteous daughter Hindi declare that Hindi is the language in which their prophets, bards and writers have unravelled the mysteries of the earth and heaven and taught them to scorn the fleeting objections of the senses and grow into that spiritual oneness which is the Divine Life. For them Hindi is the language in which Meera Bai sang her ecstatic songs, Tulsi and Surdas invoked their blessed Masters and Jaishanker Prasad wove his immortal fantasies. The issue, however, must be decided on a rational basis, on objective factors, shorn of the subjective element or the personal inconvenience inevitable in a process of radical change. For a generation accustomed to the use of an exotic tongue like English, though with little pretension to proficiency therein, the adoption of Hindi must appear irksome and involving great difficulty of mental readjustment. But that is no answer to the arguments advanced on behalf of Hindi. Mahatma Gandhi stated the truth thus : “Our masters chose the wrong way for us and have made the wrong appear as right”.

Besides the political populism, the migration from English as a court language would have far-reaching consequences. To weaken the chorus of opposition, we have to take a practical approach after conducting a proper survey and formulating the standard operating procedures for multilingual courts. A lot of effort is required to be invested by engaging consultants as well as experts in the field to replace a well-developed system. While multilingualism is celebrated for its ability to complement the society, it may also be viewed as anomalous, for Indian Courts to keep up the identity and singularity of the Indian legal system.

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

Commercial Courts Act, 2015 (“CC Act, 2015” for short)

This Act came into force with effect from 23rd Day of October, 2015, and further amended on 3rd May, 2018, with primary objective of adjudication of disputes falling under this Act in a swift time bound manner and lesser hassles to the litigating parties and by introducing minimal interference by the higher courts, when the dispute is pending before the Commercial Court constituted under this Act.

To generate confidence of the parties entering into commercial agreement/transactions in the rule of law, so as, to bring about ease of doing business in India and a step of legislature towards improving the ranking of India in the “Ease of Doing Business Index”. Not only does this benefit the litigant, other potential litigants (especially those engaged in trade and commerce) but also advantaged the courts, by the reduction in backlog caused by the quick resolution of commercial disputes. In turn, this will further economic growth, increase foreign investment, and make India an attractive place to do business. Further, it also benefits the economy as a whole given that a robust dispute resolution mechanism is a sine qua non for the all-round development of an economy.

Commercial Courts are constituted under section 3 of this Act, under section 3A Commercial Appellate Courts are designated, Commercial Division of High Court is Constituted under Section 4, Commercial Appellate Division is constituted under Section 5 of the Act.

This Act provides for adjudicating commercial disputes of specified value and matters connected therewith or incidental thereto.

The term “Commercial Dispute” is defined under Section 2(1) (c) and the “Specified Value” is defined under section 2(1)(i) of the Act and now the value of the subject-matter in respect of a suit shall not be less than Rs. 3,00,000/- (Rupees Three Lakh Only) [though earlier in 2015 Act it was “not less than Rs. 1,00,00,000/- (Rupees One Crore only)”]. The mode of determination of specified value has been provided under section 12.

In order to make this legislation more effective a bar has been provided under section 8 of the Act, against revision application or petition against an interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, shall be raised only in an appeal against the decree of the Commercial Court, only with an exception provided under section 13 of the Act, that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996.

Section 12A has been added in the amended Act, providing for Pre-institution Mediation in a suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation. The pre-institution mediation process is required to be completed within three months of the making of an application by the plaintiff under subsection 1 of section 12A. The period of mediation may be extended for a further period of two months with the consent of the parties. The period during which the parties remained occupied with the pre-institution mediation, such period shall not be computed for the purpose of limitation under the Limitation Act, 1963.

Section 10 also confers jurisdiction in Arbitration matters where the subject-matter of an arbitration is a commercial dispute of a Specified Value.

In case of an International Commercial Arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed in a High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

In case arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

In case arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted.

Appellate Authority:

Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order under section 13 (1).

Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order under section 13(1A).

Section 14 contemplates that the Commercial Appellate Court and the Commercial Appellate Division shall endeavour to dispose of appeals filed before it within a period of six months from the date of filing of such appeal.

Case Law:

1. Civil Appeal No. 7843 of 2019 (Arising out of SLP (Civil) No.9391 of 2019) Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP & Anr.

The Hon’ble Supreme Court held “it is also necessary to carefully examine and entertain only disputes which actually answers the definition “commercial disputes” as provided under the Act. In the instant case, as already taken note neither the agreement between the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint.”

“A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under sub-clause (vii) of Section 2(1)(c) of the Act viz. “the agreements relating to immovable property used exclusively in trade or commerce”. The words “used exclusively in trade or commerce” are to be interpreted purposefully. The word “used” denotes “actually used” and it cannot be either “ready for use” or “likely to be used” or “to be used”. It should be “actually used”. Such a wide interpretation would defeat the objects of the Act and the fast tracking procedure discussed above.”

2. Civil Appeal No. 9307 of 2019 (Arising Out of SLP (Civil) No. 25618 of 2018) in BGS SGS Soma JV v. NHPC Ltd., Hon’ble Supreme Court held:

The interplay between Section 37 of the Arbitration Act, 1996 and Section 13 of the Commercial Courts Act, 2015, has been laid down in some detail in the judgment in Kandla Export Corporation (supra). The precise question that arose in Kandla Export Corporation (supra) was as to whether an appeal, which was not maintainable under Section 50 of the Arbitration Act,1996, is nonetheless maintainable under Section 13(1) of the Commercial Courts Act, 2015. In this context, after setting out various provisions of the Commercial Courts Act, 2015 and the Arbitration Act, 1996, this Court held:

“13. Section 13(1) of the Commercial Courts Act, with which we are immediately concerned in these appeals, is in two parts. The main provision is, as has been correctly submitted by Shri Giri, a provision which provides for appeals from judgments, orders and decrees of the Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso…”

The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order 43 CPC would, there- fore, not be appealable, and appeals that are mentioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appel- late Division of a High Court.

Thus, an order which refers parties to arbitration under Section 8, not being appealable under Section 37(1)(a), would not be appealable under Section 13(1) of the Commercial Courts Act. Similarly, an ap- peal rejecting a plea referred to in sub-sections (2) and (3) of Section 16 of the Arbitration Act would equally not be appealable under Section 37(2)(a) and, therefore, under Section 13(1) of the Commercial Courts Act.

3. Leitz Tooling Systems India Pvt. v. Bharat Bhogilal Patel Review Petition (L) No. 15 of 2019 in Commercial Suit No. 316 of 2018

Hon’ble Bombay High Court answered the following question:

“Whether in view of the amendment to the Code of Civil Procedure, 1908 by a Commercial Court, Commercial Division and Commercial Appellate Division of High Court’s Act, 2015 (4 of 2016), the Defendant can be allowed to file the Written Statement after 120 days from the date of service of Summons in a Commercial Suit”.

“30. I therefore hold that the amendments introduced to the CPC by the Commercial Courts Act are only applicable to Commercial Disputes of a Specified Value and not Commercial Disputes not of a Specified Value such as the present suit. Consequently, amongst other amendments introduced to the CPC by the Commercial Courts Act, the amendment to the CPC mandating that a Written Statement in a Commercial Suit has to be filed within 120 days, will not apply to Commercial Disputes not of a Specified Value.”

Views Are Personal Only.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh)