Language of Court in India

Context:

Recently, the Gujarat High Court has asked a journalist facing contempt of court proceedings to speak only in English as that was the language in the higher judiciary.

Language of Court in India

A brief history of Language in our Judiciary

• Colonial History: India’s legal system is an institutional inheritance of the British Raj and thus the English language is an integral part of its foundation
• Continuance of English in Post-Independent India: The familiarity of English for official work led the Constituent Assembly to retain it, in addition to Hindi, as the Official Language of the Union.
• Article 348 of the Constitution: It was categorically drafted to stipulate that proceedings in the high courts and the Supreme Court would be conducted in English, and that the authoritative text of all acts, orders, rules and regulations would be in English subject to Parliament enacting a law otherwise.
• Necessity of English: It was asserted that English had become critical to the interpretation and application of laws, which too were originally drafted in English. Hindi, or other Indian languages, could only be used for such a purpose once it developed the same kind of capacity, knowledge and analytical accuracy as required for legal interpretation.
• Absence of sustained effort: In the wake of inadequate efforts to develop and enrich Hindi, English continued to be the language of choice for the legal system.

Language of Court in India

The majority of Indian courts use two languages namely “Hindi and English” which are the official languages of the Government of India. The Supreme Court of India, the highest judicial institution, of India uses “English” as its working language. The High Courts of different states also use English as their working language but there is a provision in the constitution that provides “Hindi” or any other language that can be used if the governor with the consent of the President of India may authorise to do so. Mostly in subordinate courts, regional languages are used, but the state government has the power to invoke any language by promulgating an act if it feels necessary for the litigants.

• Supreme Court

Article 348 of the Constitution of India deals with the provision of the language used by the Supreme Court. It makes English as the working language of the Supreme Court of India until the parliament by law specifically provides some other language. Now, after the enactment of Article 349, the parliament has been restricted to enact any kind of provision regarding the change in language, provided under Article 348(1) as English being the language of the Supreme Court, after the commencement of 15 years of the Constitution of India. However, the judgments, order, and decree shall stay ineffective from this provision and shall be pronounced in English only.

• High Courts

The language used in the High Courts shall be English as provided in Clause(1) of Article 348. However, Clause(2) states that the governor can authorise the use of Hindi or any other language with the consent of the President for the proceedings of the High Court. A provision further provides that nothing in this section shall apply to any judgment, decree, or order of the High Courts which means that the judgments shall be pronounced in the English language only. Section 7 of the Official languages Act, 1963 provides that the Governor can authorize the use of Hindi/another language with the consent of the President. In the case of judgments, orders or decree is passed in any Hindi or any other language it shall be accompanied with English translation of the same.

• Subordinate courts

The language of the all courts subordinate to High Courts generally remains the same as the language on the commencement of the Civil Procedure Code 1908, till the state government determines. There are two provisions regarding the use of language in subordinate courts. Under Section 137 of the Code of Civil Procedure, the language of the district courts shall be similar to the language of the act. The state government has the power to declare any regional language as an alternative for the proceedings of the court. However, judgments, orders, and decree may be passed by the magistrate in English. The recording of the evidence shall be done in the prevailing language of the state. In case of a pleader being unacquainted with English, a translation into the language of the court shall be supplied to him on his request and the court shall bear such costs.

Section 272 of the Code of Criminal Procedure 1973, states that the State government shall determine the language of all courts other than the High Courts. So, broadly it means that the language used in the district courts shall be in the regional language as the state government directs.

Official Languages Act 1963:

• It empowers the Governor of a state to, with previous consent of the President, authorise the use of Hindi/the official language of the state, in addition to English, for the purpose of any judgement, decree or order passed by the High Court of that state.
  • It further provides that where any judgement/decree/order is passed in any such language it shall be accompanied by a translation of the same in English.
    • Read with the constitutional provisions, it is clear that primacy is given to English even by this Act.
  • The Official Languages Act makes no mention of the Supreme Court, where English is the only language in which proceedings are conducted.

Reasons for Using English:

• Just like cases from all over the country come to the Supreme Court, judges and lawyers of the Supreme Court also come from all parts of India.
  • Judges can hardly be expected to read documents and hear arguments in languages with which they are not familiar.
  • Without the use of English, it would be impossible to discharge their duty. All judgments of the Supreme Court are also delivered in English.
    • Though, in 2019, the Court introduced an initiative to translate its judgments into regional languages, it is rather a tall order given the sheer volumes of judgments which the Court delivers.

Significance of Using English:

• Uniformity: At present the judicial system in India is well developed, integrated and uniform throughout the country.
  • Easy Access: Lawyers as well as the judges have the benefit of easy access to the views of other high courts on similar legislations and other matters of law and constitution.
  • Seamless Transfers: Presently, the judges from one high court are transferred to other high courts seamlessly.
  • Unified Structure: This has given a unified structure to the Indian judicial system. The hallmark of any robust legal system is that the law should be certain, precise and predictable and we have nearly achieved that in India.
  • Link Language: To a very great extent, we owe it to the English language, which has served as a link language for India where we have about two dozen official state languages.

Arguments against the use of English in district courts

There are various aspects that must be checked before reaching the answer to the question that; should English be used as proceedings language in the subordinate courts?

Pleaders are not well versed in English

Most of the pleaders practicing in the subordinate courts are not well acquainted with the use of language as they are having their regional languages as their mother tongue. The rural subordinate courts are having their very poor infrastructure. The staff, pleaders, and the courtroom clerks are generally recruited from the local areas and are not well versed in English and imposition of english would create unfavourable conditions for them. Recently, the Haryana government has made mandatory use of Hindi as a language in all courts subordinate to the High Court in its state because almost 80 percent of the litigants were more familiar with Hindi. Similarly, in north Indian districts, Hindi is more frequently used in the district courts.

Most often parties are acquainted with regional languages

In courts subordinate to the High Courts, the parties are not acquainted with English as they use their regional languages. In Southern Indian states, the parties are even not familiar with the Hindi language. The recording of evidence is also done in the regional language. As we know that in legal language a mere slight change may harm the litigant and turn the judgment against him. So, the proceeding needs to be communicated in the vernacular languages so that parties and pleaders can proceed with the adaptive language which would be beneficial for the parties.

Article 19 (Freedom of speech and expression)

The litigant has the fundamental right to understand and participate in the courtroom proceedings as it argumentatively confers a bundle of rights under Article 19 and Article 21. The litigant has the right to speak in the language he/she understands before the magistrate. Similarly “right to justice” is also recognised under Article 21 of the Constitution. So, the constitution has conferred the right to justice on the litigant which further encompasses that he shall have the right to understand the whole proceedings and the judgment delivered.

Way Forward

• Language has always been an emotive issue in India and the spectre of introduction of respective official languages of the states in 25 different high courts looms large, which will have very serious repercussions for the Indian judicial system.
• A hitherto unified and well structured legal system within the country might well disintegrate in the game of lingual one-upmanship by the states.
• The introduction of official state languages to the proceedings also directly confronts and interferes with the transfer policy of high court judges.
• Thus the move by the different states to introduce their official language in their respective high courts without having a discussion with other states at any level or making any effort to achieve even a semblance of consensus for the alternative link language in place of English will only create legal pigeon holes with judiciary of one state having no means to interact with the judiciary of the other states.
• The channels of communication between judiciaries of different states will be broken. In that eventuality the unified structure of the judicial system of the country will not be the only thing, which may crumble at the altar of petty regional politics and lingual chauvinism.

Source: The Hindu

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