The article is written by Naman Sherstra, from the Department of Law, University of Calcutta. The article discusses the arguments in favour and against the use of English in subordinate courts.
Table of Contents
Introduction
India is a country where people use diverse languages with the change in regions. The Eighth Schedule of the Constitution of India has recognised 22 regional languages used by approximately 97 percent of the people. The language is a mode of interaction that plays a very important role in the courts among the judges, parties and the legal practitioners. Recently, the apex court has declared that its judgments will soon be available in seven languages including English. The news reports state that these languages shall be Hindi, Telugu, Assamese, Kannada, Marathi, and Odia. The subordinate courts across the different districts of Indian states use regional languages in their work system. The argument on the use of language arose when recently Haryana Government made “Hindi” as a mandatory language in all courts subordinate to the English language. The arbitrary imposition of Hindi language has put all the pleaders in a dilemma as earlier English was being used in the Courts. The State government has imposed the mandatory use of language through the Haryana Official Language (Amendment) Act, 2020. On a challenge being made against the act, the Supreme court dismissed the petition stating that there is no problem in the use of Hindi in the subordinate courts as 80 percent of the litigants understand the said languages. Now, coming to the discussion over the use of English language in subordinate courts, we need to note several aspects, and come to the conclusion that whether the use of English in the subordinate courts would be a good decision or not? What are legal provisions regulating the use of languages in district courts?
Language of the Indian courts
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.
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.
The state universities provide legal education in Hindi or regional languages
It is pertinent information that many of the state universities are still providing legal education in either Hindi or regional languages. Even the textbook of the statutes exists in both forms Hindi and English and the professors even interpret them in either Hindi or regional languages. Universities in rural districts of India lack good professors. I know some law schools where not even a single class is conducted in the whole session. So, the law graduates passing from such universities start their real learning phase from the subordinate courts. It will be quite difficult for him to adapt to such courts if English is used as a procedural language in such courts.
Inclusive system providing space for non-English speaking lawyers
Language is only a way of communication. Subordinate courts are the place which is occupied by non-english speaking lawyers most. The inclusive system where regional language is used provides such local lawyers to have their own identity and space. There is a benefit in having such a system where the elite English speaking lawyers cannot hegemonize the system.
Arguments in favour of use of English in district courts
There are several arguments which are also raised in the favour of use of English in the district courts. However, there are several metropolitan courts in cities like New Delhi where English is used as the court’s language.
English shall bring homogeneity in the system
Almost, in every judicial institution, English is used as a primary language of the courtroom. The use of English will bring homogeneity in the whole judicial system. Since most of the cases travel from lower courts to High Court and later Apex Courts for appeals, the litigant can’t put the argument there that the proceedings should be conducted in regional languages, and it is not possible as there are 22 languages recognised in Schedule 8 of the Constitution of India. The aspiring lawyers willing to move High Courts and the Apex court read and strive to learn the use of English along with the local language. Hence, in order to bring uniformity in the whole judicial system, English should be allowed to be used in the courts subordinate to the High courts in respective states.
Vernacular languages monopolies the system in vernacular courts
The vernacular languages create a monopoly in the subordinate courts. Suppose a South Indian lawyer residing in Haryana starts his practice before the subordinate court at Panchkula (a town in Haryana), he will face the language problem as the existing Hindi language is used there, in which the lawyer is not versed. Similarly, there are various subordinate courts which shall unwelcome the practitioners hailing from diverse language states. So, the regional language creates a monopoly in the system hampering the right of lawyers from other states willing to settle and practice.
The lower judiciary shall be restricted for the outsider candidates
The use of regional language in the subordinate courts shall deprive the candidates coming from outside the state to participate in the judicial service examination. In case the candidate clears the judicial service examination and is posted in any state where regional language is prevalent to which he is not acquainted, he shall face trouble in discharging his duties. Moreover, the Central Government is going to implement All India Judicial Services for the recruitment of Judges for the subordinate courts. The recruited judges from different parts shall be posted at different district courts across India. So, English should be enacted as a subordinate court’s language in order to combat such situations and bring uniformity in the Judicial System.
Adding financial burden to the parties
The imposition of local language in the subordinate courts shall add a financial burden on the petitioners in case the matter moves to the High court and the Supreme court for appeals. The documents of the local language need to be translated into English before filing in the High Court or the Apex courts. In the case of piles of briefs, the higher cost of translation shall add a huge financial burden over the parties. The unnecessary cost of translation can be avoided if English is used in the district courts. Since, the weaker class and poor litigants are aggrieved by the prevailing system, so English needs to be implemented in the district court to skip such troubles.
Conclusion
The legal debate over the existence of English in subordinate courts is complex as India is a country of unity in diversity. The Apex Court has the power under Article 142 of the Constitution of India to declare a law on use of English and that shall be binding on all courts subordinate to it. But such law shall hamper the right of lawyers to practice and even the litigants shall face the trouble in understanding the proceedings. Hence, the use of local languages in the subordinate courts is important along with English. With the passage of time, the advocates and the system will be well acquainted with the use of English then the state government on the need basis shall take the required steps for the replacement of such language as provided in the Civil Procedure Code and the Criminal procedure Code. Recently, in Patna High Court the governor with the consent of President has authorised the use of “Hindi” as an alternate language for filing of cases. Similarly, former Chief Justice of India Justice Rajan Gogoi in July 2019, cleared a way of making Supreme Court judgments available in six regional languages so that the litigants and the local practitioners can be able to understand it. So, the regional language should exist until the judicial system is fully acquainted with the “English” language.
References
- Official languages in district courts: A case to encourage the use of English, https://www.barandbench.com/columns/official-languages-in-district-courts-a-case-to-increase-the-use-of-english
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