The Language of Justice: Should there be a change?


With the ongoing imbroglio regarding a link language, the debate whether English should continue to be the official language of the Supreme Court and the high courts has resurfaced again.

Article 343 of the Constitution provides that the official language of the Union of India shall be Hindi. However, for all official purposes, English was allowed to be used along with Hindi. Further, Article 344 provides for Scheduled languages, which are those languages that are listed in the 8th schedule of the Constitution and are given official recognition and encouragement by the Central government.

Apart from the above, Article 348 of the Constitution mandates that all proceedings in the Supreme Court and in every High Court shall be in English language until Parliament otherwise provides by law.

Further, Article 348 (2) provides that the Governor of the state may, with the previous consent of the President, authorise the use of the Hindi language or any other language used for any official purpose of the State, in the proceedings of the high court having its principal seat in that State provided that decrees, judgments or orders passed by such high courts shall be in English.

The Official Language Act, 1963 also reiterates the above position and Section 7 thereof provides that the use of Hindi or official language of a State in addition to the English language may be authorised, with the consent of the President of India, by the Governor of the State for the purpose of judgments, decrees etc. made by the High Court for that State. No law has been made in this regard by the Parliament so far. Therefore, English continues to be the language for all the proceedings of the Supreme Court.

Today the Registry of the Supreme Court accepts pleadings only in English and Order VIII Rule 2 of the Supreme Court Rules, 2013 mandates that no document in language other than English shall be used for the purpose of any proceedings before the Court, unless the same is accompanied by a translation of the same in English.

The use of Hindi has been authorized in the proceedings as well in the judgments, decrees or orders in the high courts of the states of Rajasthan, Madhya Pradesh, Uttar Pradesh and Bihar and several other states.

In this background, the 18th Law Commission of India in its 216th Report on �Non-Feasibility of Introduction of Hindi as Compulsory Language in the Supreme Court of India' has, after detailed discussions with all stake-holders, inter-alia, recommended that the higher judiciary should not be subjected to any kind of even persuasive change in the present societal context.

The Law Commission recognised that language is a highly emotional issue for the citizens of any nation being a great unifying force and is a powerful instrument for national integration. 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 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 the higher level should be left free to evolve their own pattern of delivering judgments.

Another reason for use of English in higher judiciary is that in view of the national transfer policy in respect of the high court Judges and to facilitate movement of lawyers from high court to apex court, it is important to ensure that they are not confronted with any linguistic problems and English remains the language at both the levels.

Thus, it is a little late to delve into the question whether the Parliament should provide a different language for the Supreme Court and the high courts when English has been followed for the last 75 years.

Having adopted and excelled at the common law system, the Indian judicial system has gained a historical advantage to have the use of a language which is almost the language of the entire world now. Further, the question of language being used in the higher courts of the country is to be decided with ease in implementation of the system of public law, the international human rights regime, the International Intellectual Property regime and the increasingly integrating economic laws and trans-border transactions which mandates an integration with the legal systems of other countries and jurisdictions.

It is for this reason, the full court of the Supreme Court has retained English as its official language and has repeatedly rejected the proposal for use of Hindi or any regional language in the proceedings of Constitutional Courts.

People demanding the change often cite Article 351 of the Constitution which provides that it shall be the duty of the Union to promote the spread of Hindi Language so that it may serve as a medium of expression for all elements of composite culture of India. However, they lose sight of the fact that the Constituent Assembly itself made it clear that the use of Hindi must not be imposed on the peoples speaking other Languages against their wishes.

Even though I agree with the concept of an indigenous link language between all states of India, changing the established language of justice will lead to nothing but chaos. Regional influences play a vital role in the politics and culture of respective states and we have already seen even after division of states on linguistic basis, they are still fighting on issues of boundary and water amongst others.

Therefore, compulsory imposition of Hindi or any other regional language on other parts of the country, will only lead to adding fuel to fire and will aid the fissiparous and divisive forces, which are at work in their malicious attempt to hamper the national integration and maintaining the unity and solidarity of the country.

As Justice Krishna Iyer said, "I feel the nationalist feeling behind the plea for Hindi, but I cannot ignore the realities on the ground in our multilingual country. I am all for Hindi as a personal preference, but I am all against Hindi by compulsion, especially of judgments of the Supreme Court of India. Wisdom is different from obscurantism. Let us give Hindi a high place in national expression and full facility for instant translation of every representation people wish to make to the higher courts as an integral part of free legal aid. The three-language formula which has some official status may well be considered for implementation, whatever be the cost it may involve. Linguistic militancy will alienate and divide but federal pluralism is democratic sensitivity."

Therefore, the current linguistic imbroglio with respect to the usage of language in courts is futile. Instead of tinkering with something which is working just fine, we need to concentrate on improving other aspects of our judicial system which needs a complete overhaul especially with the huge pendency which has arisen after the Covid-19 Pandemic.

The goal must be "delivery of justice in appropriate time", i.e., to provide a fair, quick, transparent, effective, and accountable judicial system that promotes access to justice for all.

(The writer is Advocate-on-Record at the Supreme Court of India. Views are personal)


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