There is less than one month for the 50th Chief Justice of India (CJI) Dhananjay Chandrachud to be sworn-in after the present incumbent demits office on November 8. Articulate, urbane and boyish-looking, Justice Chandrachud is liked by judges and lawyers alike. He spent a large part of his career in Mumbai where he rose to become the additional solicitor general before being sworn-in as a high court judge. Unlike his predecessors, he will have a long tenure of two years and seven days before he demits office in 2024.
With the incoming chief justice of the Bombay High Court, he will finalise which lawyers of the Goa bar will be elevated as high court judges. This is simply because if meritorious lawyers are elevated in their 40s, emulating Justice Chandrachud, they will be considered for the Supreme Court as they rise in the all India seniority list of judges. The Bombay High Court has had stellar judges as the chief justices of India since the inception of the Supreme Court in 1950.
In fact, the 47th CJI Sharad Arvind Bobde, the 49th CJI Uday Umesh Lalit and his successor DY Chandrachud were all products of the Bombay Bar – but if regional weightage is a must—as the law minister Kiren Rijuju asserts, then Goa has never been represented in the Supreme Court. The normal route is, a lawyer becomes an advocate general, or solicitor general, then he is elevated as a high court judge before being transferred to one or more other high courts as their chief justice before he is finally elevated to the Supreme Court.
However, Goa is a unique case because it had no representative when the Constitution was being drafted because it was a Portuguese colony and was amalgamated into India in 1961. Goa had an altogether different civil law system which was the opposite of the British common law system. It had only a single medical school and not a single law college. So, the lawyers who practiced law in Goa had to obtain their licentiate from Portugal and be proficient in the Portuguese language. Some of these laws like the common civil code and the code of comunidades pose excellent samples of precise drafting without loopholes.
For the Portuguese, who are demonised for destroying temples, enacted laws to emancipate women with the result that even married women continued to have a share in their ancestral property unless they renounced this in front of two independent witnesses. This deed was registered before the government. This was unheard of in the prevailing Hindu customary law or the Shari’a which did not give daughters the same rights as sons.
Portuguese judges followed the inquisitorial system where they were allowed to question those accused of serious crimes and pronounce their judgments without being dependent on the police. Under the British common law system, the judges’ role is akin to a referee of a football match where they are dependent on incompetent prosecutors and venal police.
After the amalgamation of Goa, Daman and Diu into India in 1961, these egalitarian laws were replaced so the Indian Penal Code which was enacted in 1860 with its corollary the Criminal Procedure Code, 1973 and the cumbersome Civil Procedure Code of 1905 were introduced to make litigation costly and ineffective because suits dragged on for 50 years or more. Rather than build on the edifice the Portuguese left us, we chose to dismantle it and introduce a legal system which did not suit Goa and Goans.
With the introduction of a Bill in Parliament to make teaching in Hindi compulsory in all central universities like the IITs, IIMs, and the AIIMS, the government wants the 25 high courts in India to use Hindi in their judgments and working which will make justice accessible to the common man. Under Article 348 (1) of the Constitution, English was to be the official language of the Supreme Court and all high courts. The 18th Law Commission of India in its 216th report declared it was not practical to insist the Supreme Court deliver its judgments in Hindi which has been consistently used in the high courts of Bihar, Uttar Pradesh, Madhya Pradesh and Rajasthan. But the governments of Tamil Nadu, Gujarat, Chhattisgarh, West Bengal, and Karnataka sent proposals to allow their own high courts to use their regional languages.
But the CJI on October 16, 2012 rejected these proposals as unfeasible. The then Congress government accepted the decision of the Supreme Court which was iterated on July 4, 2014 after another request from the Tamil Nadu government to use Tamil. After taking charge as the 50th CJI, Justice Chandrachud will have to deal with these and other knotty issues because Prime Minister Narendra Modi wants justice accessible to the common man. Some judgments today are unintelligible to the common man due to verbosity.
If Hindi is allowed in the Allahabad High Court and the Patna High Court, there is no reason why Konkani should not be permissible in Goa so that judges who can speak, read and write this language should be given preference. Konkani encapsulates the ethos and culture of the Goan people the way no other language can do. Its usage in judicial proceedings will give it an impetus.
It is the 50th CJI, Justice Chandrachud who will take these policy decisions in consultation with his collegium members who have been drawn from all the other high courts. But sadly, as in the past, a Goan judge is not one among them. Simply because none of our excellent judges made it to the Supreme Court.
(Olav Albuquerque holds a PhD in law and is a senior journalist-cum-advocate of the Bombay High Court)
