The Language of Justice: Should There Be a Change?
With the ongoing imbroglio over a liaison language, the debate over whether English should continue to be the official language of the Supreme Court and high courts has resurfaced.
Article 343 of the Constitution provides that the official language of the Indian Union is Hindi. However, for all official purposes, English was allowed to be used along with Hindi. Further, Section 344 provides for Scheduled Languages, which are the languages that are listed in the 8th Schedule of the Constitution and which are officially recognized and promoted by the central government.
In addition to the above, Section 348 of the Constitution provides that all proceedings in the Supreme Court and in each High Court shall be in English until Parliament otherwise directs by law.
Further, Section 348(2) provides that the Governor of the State may, with the prior consent of the President, authorize the use of the Hindi language or any other language used for official state purposes, in the proceedings of the highest court having its principal seat in that State, provided that the decrees, judgments or orders rendered by such high courts are drawn up in the English language.
The Official Language Act 1963 also reiterates the above position and its Section 7 provides that the use of Hindi or the official language of a State in addition to the English language may be permitted, with the consent of the President of India, by the Governor of the State for the purposes of judgments, decrees, etc. rendered by the High Court of that State. No law has been adopted on this subject by the Parliament so far. Therefore, English continues to be the language of all Supreme Court proceedings.
Today, the Supreme Court Registry only accepts pleadings in English and Order VIII, Rule 2 of the Rules of the Supreme Court, 2013, provides that no document in any language other than English shall not be used for the purposes of any proceedings before the Court, unless accompanied by a translation of the same into English.
The use of Hindi has been permitted in proceedings as well as judgments, decrees or orders of high courts in the states of Rajasthan, Madhya Pradesh, Uttar Pradesh and Bihar and several other states.
In this context, the 18th Law Commission of India, in its 216th report on the “unfeasibility of introducing Hindi as a compulsory language in the Supreme Court of India”, after discussions extensively with all stakeholders, among others, recommended that the senior judiciary should not be subject to any type of change, however persuasive, in the current societal context.
The Law Commission has recognized that language is a highly emotional issue for citizens of any nation, being a great unifying force and a powerful instrument of national integration. It is not merely a vehicle for thought and expression, but for judges at the higher level, it is an integral part of their decision-making process. Judges must hear and understand the arguments of both parties, apply the law to adjust actions.
Arguments are usually presented in superior courts in English and the basic literature of the Indian system is mainly based on English and American textbooks and case law. Thus, higher-level judges should be free to evolve their own way of delivering judgments.
Another reason for the use of English in the upper judiciary is that, in view of the national policy of transfer of judges from the high courts and to facilitate the transfer of lawyers from the high court to the supreme court, it is important to ensure that they are not faced with any language problems and English remains the language at both levels.
Thus, it is a little late to consider whether Parliament should provide for a different language for the Supreme Court and the High Courts when English has been followed for 75 years.
Having adopted and excelled in the common law system, the Indian judicial system has gained a historical advantage for having the use of a language which is almost the language of the entire world now. In addition, the question of the language used in the superior courts of the country must be resolved with ease in the implementation of the public law system, the international human rights regime, the international intellectual property regime and the increasingly integrated economic laws and cross-border transactions that require integration with the legal systems of other countries and jurisdictions.
It is for this reason that the full court of the Supreme Court retained English as the official language and repeatedly rejected the proposal to use Hindi or any other regional language in the proceedings of the constitutional courts.
Those demanding change often cite Section 351 of the Constitution which states that it is the duty of the Union to promote the spread of the Hindi language so that it may serve as a medium of expression for all elements of the composite culture of India. However, they lose sight of the fact that the Constituent Assembly itself made it clear that the use of Hindi should not be imposed on people who speak other languages against their will.
Although I agree with the concept of an indigenous liaison language between all the states of India, changing the established language of justice will only lead to chaos. Regional influences play a vital role in the politics and culture of the respective states and we have already seen that even after the states have been divided on a linguistic basis, they still fight over border and water issues among others.
Therefore, the compulsory imposition of Hindi or any other regional language in other parts of the country will only add fuel to the fire and help the divisive and divisive forces, which are at work in their malicious attempt to hinder national integration and maintain the unity and solidarity of the country.
As Judge Krishna Iyer said, “I feel the nationalist sentiment behind the advocacy for Hindi, but I cannot ignore the realities on the ground in our multilingual country. I am all for Hindi by personal preference but I’m all against Hindi out of compulsion , especially judgments of the Supreme Court of India. Wisdom is different from obscurantism. Let’s give Hindi a high place in the national expression and a full facility for instant translation of any representation people wish to make to the higher courts as part of the free trilingual formula which has some official status can very well be considered for implementation, whatever whatever the cost, language activism will alienate and divide, but federal pluralism is a democratic sensibility.
Therefore, the current linguistic imbroglio regarding the use of language in the courts is futile. Instead of tinkering with something that works very well, we need to focus on improving other aspects of our justice system that need a complete overhaul, especially with the huge expectation that has arisen after the Covid-19 pandemic .
The objective must be “to deliver justice in a timely manner”, that is, to provide a justice system that is fair, prompt, transparent, efficient and accountable that promotes access to justice for all.
(The author is a Registered Advocate at the Supreme Court of India. Opinions are personal)
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