Jul 08,2020 | 8 min read

Courts in India: Divided by English as a Common Language By Amit Jain

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

In this 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 with the shift from Urdu to Persian and Farsi 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 to 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 the 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, maybe 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 is a country with a mélange 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 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 textbooks and case laws. Thus, Judges at a 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 the 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.

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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 labour 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 the 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 done 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 vs 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. vs. 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, (had) 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 the great difficulty of mental readjustment. But that is no answer to the arguments advanced on behalf of Hindi. Mahatma Gandhi thus stated the truth: "Our masters chose the wrong way for us and have made the wrong appear as the 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 practising advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

 


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