12 Nov 2018 4:50 AM GMT
Following tweet by a journalist has gone viral.https://twitter.com/harishvnair1/status/1057892525241847810This has lead to lot of ‘trolling’ in social media space. Several persons have expressed opinion criticizing the Court as ‘snobbish’ and ‘elitist’. But has the Court committed any wrong by its response in the above manner? Let us examine.Before proceeding further, it will...
Following tweet by a journalist has gone viral.
This has lead to lot of ‘trolling’ in social media space. Several persons have expressed opinion criticizing the Court as ‘snobbish’ and ‘elitist’. But has the Court committed any wrong by its response in the above manner? Let us examine.
Before proceeding further, it will be beneficial to see the Constitutional scheme in relation to language. In the Constitution of India Part XVII titled ‘Official Language’ groups language into following distinct groups viz:
Apart from these, there are provision dealing with language in Business in Parliament(Art 120) and State Legislatures (Art.210)
We are concerned with Art 348 relating to language for the courts. Just as we have a national anthem, national flag etc, there was a desire to have a national language. But the task of having a national language for a multicultural country like India was never easy. India has always been a multilingual nation. Over 1600 languages and dialects flourish in India.
There were strong proponents of Hindi then, just as there are today. During the language debate-Constituent Assemblymember Dhulekar made statement like;
“People who do not know Hindustani have no right to stay in India. People who are present in this House to fashion out a Constitution for India and do not know Hindustani are not worthy to be members of this Assembly. They had better leave (CAD 1:26-27)”
Hindustani is to be understood as Hindi we speak commonly and not some chaste, pure Hindi.
Mahatma Gandhi was desirous of having one national language to give India its identity. However it looked difficult and after lots of deliberations Dr. N.G.Ayyangar in one of his speeches at the Assembly states that,
“There was one thing about which we reached a fairly unanimous conclusion that we should select one of the languages in India as the common language of the whole of India, the language that should be used for the official purposes of the Union.”
But which language it should be? The assembly was bitterly divided into two halves- one who wanted Hindi as the official language and other who didn’t want so. The Chairperson Dr BR Ambedkar ruled out having more than one official language. He stated that:,
“One language can unite people. Two languages are sure to divide people. This is an inexorable law. Culture is conserved by language. Since Indians wish to unite and develop a common culture, it is bounden duty of all Indians to own up Hindi as their official language.”
Finally, after lots of deliberations, Munshi-Ayyangar formula was adopted without dissent. According to this formula, English was to continue as the official language of India along with Hindi for a period of fifteen years. Schedule VIII is a fruit of Munshi- Ayyangar formula. In 1963, the Official Languages Act was enacted to pacify non-Hindi speakers and in 1967 the Act was amended for indefinite usage of English and Hindi as the official languages of the country.
As we are concerned only with the language of the Supreme Court, we will keep our focus on Article 348. Article 348 of the Constitution provides that
(1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides —
(a) all proceedings in the Supreme Court and in every High Court,
(b) the authoritative texts —
(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and
(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State,
shall be in the English language.
(2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State: Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.
(3) Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.”
A plain reading of Art 348 provides that all proceedings in the Supreme Court shall be in English. Further, the Supreme Court of India Handbook on Practice and Procedure and Office Procedure, 2017, also says: "the language to be used in the Court and all proceedings in the Court, shall be in English.
Madhu Limye’s case
In 70s a Seven-Judge Bench of the Hon’ble Supreme Court had an occasion to devolve upon the issue: what should be the language of the Supreme Court? While hearing a habeas corpus petition in case of Madhu Limye v Ved Murti[(1970) 3 SCC 738: AIR 1971 SC 2608], intervener Raj Narain insisted on arguing in Hindi before the Supreme Court. The seven judges adorning the bench were Chief Justice Hidayatullah, Justices Shelat, Bhargava, Mitter, Vaidyialingam, AN Ray and Dua. The court heard Raj Narain for sometime in Hindi and next day expressed there inability to follow him. The court gave him three options:
(a) that he may argue in English; or
(b) he may allow his counsel to present his case; or
(c) he may give his written arguments in English.
The court reminded that Art 348 provides that the language of the Supreme Court is English. As Raj Narain was not amenable to these suggestions, the court was construed to cancel his intervention.
In the present controversy, the bench lead by the Hon’ble Chief Justice Gogoi has simply followed this 7 judge order in Madhu Limye v Ved Murti. It has given the option to the District Judge to submit his written arguments in English.
Seen in the backdrop of the Constitutional provisions, the criticism directed at the Court for this episode seems unfounded and disproportionate. The statement attributed to the CJI, “You are a judge and you can't speak in English?” is simple that as a judge one must know the Constitution and its provision. Art 348 clearly stipulates that the language of the court must be English. The CJI even benevolently told the judge that he may conduct his court in Hindi but when he comes to Supreme Court language must be English, as provided under the Constitution.
One must remember that India doesn’t have a national language. It has an official language. Article 343 provides that the official language of the Union shall be Hindi in Devanagari script.
Further, English was to continue as the official language of India along with Hindi for a period of fifteen years only initially. Later, this period was extended indefinitely by the Parlimanet.
Anyhow, the Constitution is very clear that as far as superior courts are concerned, the language of business shall be English. In this regard, it is pertinent to refer to the opinion expressed by Mr Ayyangar in the Constituent Assembly:
“Our courts are accustomed to English; they have been accustomed to laws drafted in English; they have been accustomed to interpret in English. It is not always possible to find proper equivalent to an English word in the Hindi Language and then proceed to interpret it with all the precedents and rulings which refer only to the English words and not the Hindi words.”
Further, Art 348(1)(b) provides that authoritative text of all orders, rules, regulations and bye-laws issued under Constitution or laws and all the Acts, bills, ordinances promulgated by the President or Governor shall be in English Language for the purpose of proceedings before the Supreme Court and High Court.
216th Law Commission Report (2008) has also recommended the continuance of English in courts. 216th Law Commission report quotes eminent jurist Fali Nariman on “Non-feasibility of the introduction of Hindi as a compulsory language in the supreme court of India” as under:
“2. I may be old fashioned but I would earnestly request both Parliament and the Government of India not to tinker with the legal system as it has existed – principally because the entire legal system in India is based on, and has much in common with, the English-language: both were originally imported from abroad. Over the course of over 300 years, each has become distinctively Indian. The language of our law, in more senses than one, is English. It is true that the English language as spoken and written in India has the same alphabet and conforms to the same rules of grammar – but the idioms, the expressive phrases and even the pronunciation of words are vastly different. Many new words have crept in. We have institutionalized and localized the English language; as some with said, it has become English – so it is with the legal system. Originally an English transplant with AngloSaxon roots, the legal system in India has grown over the years, nourished in Indian soil; it has become indigenized; what was intended to be an English Oak, has turned into a large sprawling Banyan tree whose serial roots have descended to the ground to become new trunks.
3.To change the language in which Acts are drafted and to require Courts to deliver judgments in Hindi is at present something impossible to conceive – unless we throw out our legal system and adopt a new one by consensus. Indians would then all have to speak and think in Hindi in a new indigenous system of law that is truly Indian (and not Anglo Saxon): this requires a major surgical operation and at the present time I would earnestly suggest that we postpone this exercise till India has become what it was always meant to be: a unified, united and pluralistic society of peace loving citizens.”
In the end I’ll say let’s not sensationalize the issue and let’s not stretch our already stretched fabric of nation.
Charu Mathur is an Advocate-on-Record at Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]