Justice In English: Indian Courts, Language And Accessibility

The constitutional sanction and its original intent: Article 348 of the Indian Constitution

Article 348 of the Indian constitution prescribes the use of the English language for the purposes of proceedings in the Supreme Court, high courts, acts, and bills. Sub-clause (a) of clause (1) of the article specifically provides for the use of English in the constitutional courts. Clause (2) provides for an arrangement that can be made to allow the usage of Hindi or any other language in the high courts. This arrangement, however, is tedious, as it requires the governor of a state to seek prior consent from the president and thereby authorize the use of any such language. There have been only four instances where this clause has been put to use so far (Rajasthan, Uttar Pradesh, Madhya Pradesh, and Bihar). Moreover, there is no scope for such flexibility even after the president's prior approval as far as the Supreme Court is concerned. In order to make any change in the constitution, the intent of its drafters has to be taken into account; therefore, it is essential to revisit the constituent assembly debates that birthed it.

The Constituent Assembly Debates: Historical Justification

Article 348 was originally introduced as Article 301F^[2] in the Constituent Assembly and entails detailed and conflicting arguments from both sides of the spectrum. N. Gopalaswami Ayyangar expressed his support for the motion as:

“English should be the language in which legislation, whether in the form of bills and acts or of rules and orders and the interpretation in the form of judgments by judges of the High Court—these should be in English for several years to come. For my own part, I think it will have to be for many, many years to come. It is not because we want to keep the English language at all costs for these purposes. It is because the languages that we can recognize for union purposes and the languages that we can recognize for State purposes are not sufficiently developed and are not sufficiently precise for the purposes that I have mentioned, viz., laws and the interpretation of laws by courts of law.”^[3]

Frank Anthony cites the inability of many judges to function efficiently in the Hindi language, considering their ease with English. Similarly, Ram Sahai puts across his concerns as to how allowing all the high courts to use different languages will lead to an inconvenient and chaotic situation at the Supreme Court. As far as the other side is concerned, Seth Govind Das argued that regional languages should be inculcated into practice as soon as possible because otherwise the use of English will be perpetuated to an extent that it cannot be reversed. Essentially, the supporters of the motion cited reasons of administrative inconvenience on pragmatic grounds. It's inferable from the debates that the supporters of the provision intended on restricting the compulsory usage of English for a temporary period (most of them argued for a fifteen-year period, as mentioned in the initial version of the article). The entrancement of this provision highlights the misinterpretation of the constitutional intent because the administrative convenience, which was cited as a reason for the introduction of this provision in the first place, continues to be a problem, thereby justifying the protraction of this article and defying the original intent behind the same. Therefore, the continuance of compulsory use of English for the purposes of court proceedings is not only unfair to a large section of the population but also contrary to the original intention of the constitution makers. As illustrated above, Article 348 is a transitory provision that has been adopted for the purposes of convenience. This is abundantly clear from the wording of the constitutional provision itself, as it begins with “until Parliament by law otherwise provides,” which is to say that the parliament is empowered to bring about changes to this provision when it deems it appropriate. While the conception of Article 348 was a temporary one, subsequent revaluation of the same by the law commission reveals the perpetuation of a temporary provision to a permanent norm.

216th Report of the 18th Law Commission of India: Colonial Continuities

In 2008, the Department of Legal Affairs sought the opinion of the Law Commission on the feasibility of the use of Hindi, a native language, for official purposes in the courts, as recommended by the Committee of Parliament on Official Languages.^[4] Thereafter, a pantheon of legal luminaries was asked for their suggestions on this issue. All of them opined that the compulsory use of Hindi as the official language of courts is non-feasible and will pave the way for our legal system to an utter state of chaos. The primary reasons that were cited to advance this opinion were (a) English has acquired the status of a global language, which is not merely restricted to the mother tongue of England. Therefore, India should not delineate itself and lose its relevance in the global legal discourse because that will restrict India from effectively engaging with the global world on legal grounds. (b) The judicial functionary of India is not conversant with the language of Hindi, thereby making it difficult for the existing system to accommodate this sudden change. (c) This step could have turned out to be a retrograde step because it would have led to inconsistency with the precedent judgments that are authored in English. Essentially, the reasons cited were pragmatic and apt for that point in time. However, these arguments have become redundant, considering the technological and economic advancements made by India in the last 3-4 decades. At the outset, it is important to take into account the limited nature and scope of this report because it delves into the limited question of an absolute adoption of Hindi as the official language of courts. The reports specifically answer the recommendation made by the committee and do not make an attempt to suggest anything beyond that. The usefulness of this report can be called into question on multiple counts; (a) The assumption that the increasing prominence of a language at a global stage bounds us to follow the same for domestic official purposes is inimical to our pluralistic civilizational fabric, (b) It fails to acknowledge the original intent behind Article 348, a provision that was conceptualized to be temporary for the purposes of administrative convenience has now lasted for so long that the historical advantage of the English language is used as an argument for discrediting native languages, (c) the proposition to the effect that the present system is not well versed with the native language and possible inconsistency with the precedents can be solved by developing and investing in techno-legal infrastructure wherein effective translation can take place in courtrooms. This is where artificial intelligence can prove to be highly effective; pragmatic problems can be solved by inculcating AI into everyday courtroom practices. Moreover, this question has to be answered with respect to the plurality of languages in India; blanket application of any one language will end up having the same consequences as before. The Law Commission report and the application of 'pragmatic' reasons trace back their roots to the colonial policies and practices.

Colonial Roots of English in The Indian Legal System

The usage of English as a tool for political annexation also led to its dominance in the colonial legal system. English was primarily used as a language to serve the needs of the British government and not the native population. One of the earliest imprints of the colonial legacy left behind by the British is the Charter Act of 1833—also known as the Government of India Act^[5]. This was enacted by the British parliament, and it laid the groundwork for the first Law Commission under which several colonial laws were codified and consolidated, often used as a means to subjugate the needs of the native population. The first law commission also introduced a fourth member to the Governor General's Council, a legal expert—Lord Thomas Babington Macaulay, who played a decisive role in legislative drafting. Macaulay, the man who drafted many of the legislatures now governing the country, made it abundantly clear with his speech in his Minute on Education in (1835)^[6] that he believed that the West was more civilized and superior to the East and proposed for “a class of persons Indian in blood and color, but English in taste, in opinions, in morals, and in intellect.” His preface to the Indian Penal Code in 1837^[7] reflected this ideological leaning, where the emphasis on legal uniformity came at the cost of displacing Hindu and Mohammedan law systems. While not explicitly stating the use of English, the shift towards a Western legal framework was implicitly rooted in the usage and dominance of the English language in legislative drafting and legal interpretation. Although the Indian High Courts Act of 1861^[8] and the Letters Patent for the High Courts at Bombay, Madras, and Calcutta did not directly mandate English as the language of the courts, the functioning of the colonial legal machinery gravitated towards English as the natural language of the law. Now that the historical context as to why English has procured prominence in the legal system has been elaborated upon, it is pertinent to look into other democracies, particularly former colonies across the globe and their linguistic policy of courts, to address the argument of English as a global language.

Language In Law: Democracies Across the Globe

The higher courts of several former colonies have transitioned towards using their native language in higher courts, raising the question of why India hasn't done the same despite 75 years of independence.

Rwanda, a former Belgian colony, recognized its native language, Ikinyarwanda, as the national language and one of the three official languages under Article 8 of the Rwandan constitution.^[9] Furthermore, the Supreme Court of Rwanda accepts Kinyarwanda as a language of the court. Tanzania, a former British colony, also mandated the use of its native language, Kiswahili, by all the judicial courts under Article 84 of its Interpretation of Laws Act.^[10] Several attempts to elevate Kiswahili as the main language of the courts have also been taken by the Tanzanian Parliament and judiciary with the passing of the Written Laws (Miscellaneous Amendments) Bill of 2021 by the parliament.^[11]

Similarly, Egypt, a former British and Ottoman colony, having gained independence in 1922, uses Arabic as the official language of its judicial system. The Egyptian Constitution in Article 2 specifically recognizes Arabic as the official language of the country^[12], which is reflected in the judiciary's operation. In terms of major laws, the Egyptian Civil Code,^[13] which is one of the fundamental legal texts in the country, is framed in Arabic. Additionally, the Egyptian Penal Code and various family laws are also written in Arabic.^[14]

Major democratic countries of the world use their native languages in courtroom proceedings. In France, the language of the courts is French, which is emphasized by Article 2 of the French Constitution^[15], which states that the language of the French Republic is French, explicitly affirming that French is the official language of the country, including in the legal system. Furthermore, historically, articles 110 and 111 of the Ordinance of Villers-Cotterêts of 1539 required French to be used in all legal and administrative matters,^[16] reinforcing the notion of national unity through a common language. Germany, another democratic country, uses German as the language of its courts, backed by Section 184 under the fifteenth title of the German Courts Constitution Act, which clearly specifies that "the language of the court shall be German."^[17]

If “pragmatic” considerations have not withheld other democracies in the world from reclaiming their indigenous identities and expressing them constitutionally, then why is India still operating in a manner that makes the democratic legal set-up inaccessible and cumbersome for a large section of the society?

Colonial Vestige Impairing Dispensation of Justice

The Gujarat High Court in “suo moto v. samna bhrastachar ka newspaper”^[18] reaffirmed that the high court can only function in English, and the use of any other language that is not understood by the court is prohibited by law for the purposes of court proceedings. This warrants a fundamental question: is the allowance to argue before the constitutional courts of this country only restricted to people with knowledge of English? The perpetuation of this particular constitution article gives us a peek into the colonial influence in our legal system. Justice YV Chandrachud opined in the 216th report of the 18th Law Commission, “The English language is now acquiring importance as the language of the world. We should not deny the new generation the benefit of the English language.” Similarly, Justice S. Natarajan said, “The unity and integrity of the country is bound to be affected by reason of the linguistic chauvinists.^[19]” There is an ostensible sense of superiority that rests with the English language in the legal arena that is amply reflected through everyday practice and the constitutional provision too. This issue is not only relevant to the active participants in the legal system but also to the recipients of the justice system because of the complex and foreign nature of the judgment rendered in our constitutional courts. A layman who is not well versed with English finds the tediously verbose judgments to be unintelligible, which in turn creates a tangible distance between the common man and the highest courts of this country.

It would be inappropriate to write off the logical reasons behind the perpetuation of Article 348. However, it is crucial to understand that these administrative and technical stumbling blocks can be taken care of by a systematic and institutionalized attempt to change. Technological advancements need to be employed in the field of law by making infrastructural changes in the constitutional courts. The administration of the courts has to be trained to be able to manage such changes, and more importantly, the judges should be given proper training to accommodate the technological changes in order to run the courts with efficiency. It is high time that the Parliament exercised its powers conferred by the constitution in article 348, in deliberation with all the state assemblies, in order to amend the relevant provisions and make the court proceedings more accepting and inclusive. With the world wielding artificial intelligence to make strides in the field of technology, it is an apt time for India to step up and build the required technological infrastructure for the purposes of effective and active translation of earlier judgments, legislations, and court proceedings. After 75 years of independence, the discourse is looking into the discrepancies pertaining to the linguistic policies and the legal system of India. This issue is a crucial fault line that is worthy of deliberation and debate, particularly when we are endeavoring globally to reclaim our pluralistic civilizational roots. We need to introspect if a striving and thriving democracy like India should let the legal system be encumbered by a temporarily conceptualized entrenchment of the colonial mindset or stride towards an inclusive and accessible justice system.

Views expressed are personal.