Language in High Courts of India: Is Justice Accessible to All?

May 12, 2022, 7:44 p.m.   n22saha  
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AUTHOR'S PROFILE: Nishka Kapoor, NALSAR University of Law, Hyderabad.


Introduction

The language used in the courtroom should be such that it is understood by its subjects because they are the one who comes to court to seek justice but is sometimes denied that because of the ‘language of justice’ used in India.

In India, there are 25 High Courts and 22 official languages recognized by the Eighth Schedule of the Constitution but still, the use of the English language is prevalent in the High Courts of India this is because as per the provisions mentioned in the Article 348 (1)[1] of the Constitution of India, Official Language for all the High Courts in the Country in English. However, there is a clause, clause (2) of Article 348, that allows the governor of the state, with the prior consent of the President of India, can authorize the use of Hindi or the official language of the state during the High Court proceedings.

Many suggestions were given for the use of regional language in the High Courts, to make proceedings easier for the clients to understand who are not very comfortable with Hindi and English and at the same time many concerns were raised about implementing this provision of allowing High Courts all over the country to use official local language or Hindi in there proceeding, it was argued that if this provision is adopted it would lead to instability in the working of the High Courts throughout the country.

However, certain small but progressive steps were taken in the area of use of regional language in the high courts, such as a provision was made which allowed high courts to release the official notices of the High Courts in English, as well as the local language and another step which aimed to make the legal system inclusive, was that to allow High Courts to translate judgments in the local language if required.

In the subsequent sections, I will be discussing in the brief the various suggestions which were given by the Supreme Court to allow the use of Regional language, progressive steps taken in the area of using regional language in the High Courts, and concerns related to it.

The basic aim of my research is to find about the linguistic discrimination that people in a legal context, particularly in the High Courts, by analyzing some research papers and newspaper articles related to it, and find the answer to the primary question of my research paper, ‘is the language of justice justifiable?’

Language of Justice: Making Justice Accessible in the Some Sections of the Society

During my research for the paper, I learned that even though there is a certain provision for using Hindi and local languages in the High Courts of India, the majority of courts still use English as the primary mode of communication, and to analyze the concerns related to use of English as the major mode of communication in the courts; I have analyzed various research papers which have discussed the provision of courtroom language.

Shrutanjaya Bhardwaj has authored the paper courtroom and Article 19(1)(a)[2](Published Journal of National Law University of Delhi), and in the discussion, the author has focused on the language used in the courtroom by the rights, specifically. Article 19(1)(a)[3] of the Constitution of India, gives all the citizens the Right to Freedom of Speech and Expression. So the main context of the research was a recent judicial order, by the Delhi High Court. A writ petition was filed in the Delhi High Court because they violated the Right to Freedom and Expression by not allowing the petition to be filed in the Hindi language. The outcome was that the Delhi High Court dismissed the petition without taking into consideration Article 19(1)(a).

Article 19(1)(a) guarantees all the citizens the Right to Freedom of Speech and Expression but is not an absolute right, the provision to use Hindi is mentioned under Article 19(2) provided the three-part test is followed:

(i) the restriction should be provided by law;

(ii) the restriction should be linked to one of the nine grounds listed in Article 19(2), and

(iii) the restriction should be ‘reasonable’. Therefore, every inquiry concerning the right to free speech raises two fundamental questions:

  1. Threshold: The characteristics of Article 19(1)(a) as ‘Speech’ and ‘Expression’ by the Article?
  2. Justification: How correct is the three-part test and does it comply with Article 19(1)(a)?

The author by examining multiple provisions of the Indian Constitution such as Article 19(1)(a), and Article 21 which state the Right to Access Justice, and several parts of the Constitution mainly Part II and III, in which there is a mention about the Linguistic Rights I. Other than analyzing the provisions mentioned in the Constitution the author also gave many philosophical reasoning about how free speech and expression, to prove that the Right to Freedom of Expression extends in the courtroom as well.

The author raised many concerns such as even if a person is represented by a lawyer, and the lawyer understands the language of the court the primary of the person is being violated as that person would not be able to comprehend the proceedings directly and the author also stated the Section 32 of the Advocates Act, 1961 in which it is stated that a litigant doesn’t need to hire a lawyer to represent them, they can argue the case themselves with the court’s permission and so it can be inferred that

The other paper that I have analyzed is authored by Kajal S Joth, titled ‘Official Language of Union of India and the Issuers Resulted in Multilingual Polity.[4] (Published in International Journal of Advanced Research and Development); this paper as the title suggests does not directly talk about the provisions or issues connected to the language used in Indian High Courts, this paper majorly focuses on the socio-cultural provision of the languages in India.

The author has touched upon the constitutional provisions which accommodate linguistic diversity in India and primarily discussed the issue of national language which is prevalent in India.

In a section ‘Dialect or the Language of the courts,’ the author has discussed chapter III of the constitution of India, in the language provision of High Courts and Supreme Court is stated and analyzed the reason behind the usage of English, the justification for using English was given by Mr.Ayyangar, he said that

"Our courts are acquainted with English; they have been familiar with laws drafted in English; they have been acclimated with translation in English. It isn't generally conceivable to discover legitimate identical to an English word in the Hindi Language and afterward continue to decipher it with every one of the points of reference and decisions which allude just to the English words and not the Hindi words."[5]

The justification given for the use of English is not completely false because, if we see the majority or for that matter, all the law schools in the country teach students about the law in English and not an only law school but rather the education system of the country majorly teaches in English and that is something that detaches the population from Hindi or any other local language, and this is reflected in the courtroom as it becomes difficult to give or translate judgments with precision in any local language and.

In India it is important to use local languages or Hindi in the High Courts because the majority of the population is not familiar with the language, even though it is one of the two official languages of the country, there are many discourses on the use of English in different parts of India. In the subsequent section, I will discuss the Supreme Court’s recommendation to use Hindi and Local Languages in the High Courts of the country.

Supreme Court’s Effort to Implement the use of Regional Languages in High Court

Supreme Court has time and again recommended the use of regional languages in the High Courts, and in the year 2020 again the former Chief Justice of India Sharad Arvind Bobde suggested the central government amend the Official Languages Act of 1963 and add a provision to use regional languages in the High Courts of India[6], the reason behind this suggestion by CJI SA Bobde was that people in various parts of the country might face difficulty in communicating in either English or Hindi.

In the year 2020 a notification was published by the Ministry of Environment, Forest and Climate Change, this notification was a draft of the Environmental Impact Assessment (EIA) and it was published to raise objections and comments from the citizens of the country.[7] An Environmentalist, Vikrant Tongad approached Delhi High Court for seeking an extension to submit comments and objections and in that appeal, he also raised the issue against the central government for publishing the draft only in Hindi and English. This issue was raised because the arguments put forth by Mr.Tongad was that the draft published affects all of India and people residing in several parts of the country, but they might not be able to give their suggestions because they might not be comfortable with the official languages of the country, such as several industrialists living in rural areas of the country.

The Delhi High Court concluded after considering all the consequences this might have on the people and in the process of public consultation, the draft should be translated into languages or at least in those languages mentioned in the Eighth Schedule of the Constitution[8], as this would have a greater impact upon the work being done and would be an effective step in including most of the population of the country.

The Centre filed an appeal in the Supreme Court against the Delhi High Court’s judgment[9], The Supreme Court after reviewing the High Court’s judgment withdrew the petition and suggested amending the Official Languages Act as would be beneficial for the whole society.

The judgment of the Delhi High Court and Suggestions made by the Supreme Court is small but a progressive step towards making justice accessible to all by factoring out the language used as a medium of discrimination.

An Initiative To Change the Language of Justice By States in India

The Republic of India has 29 states and out of these The states of Uttar Pradesh, Bihar, Rajasthan, and Madhya Pradesh have authorized the use of Hindi in the High Courts of their states. [10] Many states in the country are making proposals and plan to implement the provision of allowing the use of local language(s) in the High Courts. In this section, I will discuss in brief the stance of different states on implementing a provision to use local languages or Hindi in the High Courts for a long time now.

Tamil Nadu was the first non-Hindi speaking[11] state in the country to implement the use of the regional language, Tamil in the High Court. The request by the Tamil Nadu High Court was first rejected by the central government, and then in 2006, the Law Ministry assured that it would not object to the use of Tamil in the High Court. The decision by the Chief Justice of Tamil Nadu in 2010 was pathbreaking, they allowed lawyers to argue in Tamil.

Gujarat High Court in the year 2012 requested the central government for permission to use Gujarati Language in the proceedings in Gujarat High Court[12], the request to use the local language in the Gujarat High Court was based on the Ideology of Mahatma Gandhi, who has strongly supported the use of mother tongue language, he was a major supporter of education in the mother tongue, but recently in October 2021 Gujarat High Court declared that the language to use in the court is English only.[13] Though The Gujarat High Court provides a translation of its judgments on the official website, the primary language for communication in court is English.

In 2016 Maharashtra Government also posed a proposal, to make Marathi the official language of the Bombay High Court,[14] the debates to make Marathi the official language in all civil and criminal courts in the state have been going on since 1998[15] but nothing has such has been done that area yet because of the provisions mentioned under Article 348(2) of the Indian Constitution. In the year 2006 in a case, the Bombay High Court stated that no Marathi, but English is the official language of the High Court[16], whereas, in 2009 a bench ruled that local languages should be given the importance in the justice system, on the ground that justice should be accessible to everyone.[17] The fight to make use of the local language in the Bombay High is a long one, as the court does not provide a translation of the judgments in the local language (Marathi) the Bombay High Court has requested the Maharashtra government to provide facilities to translate the judgment, but nothing has been done yet. There is a long way for everyone in Maharashtra to access justice.

Very recently in the year 2020, the governor of Haryana sent his recommendation to the president of India for the use of Hindi in the Punjab and Haryana high court, and then amended the Haryana official language act, 1969 and added section 3-a, which made the use of Hindi in subordinate courts in Haryana, the high court of Punjab and Haryana, revenue courts in the state and tribunals set by the government, it is stated that all the work shall be done in the Hindi language in these specified courts and tribunals. [18]

Reasons for Using Regional Languages in the High Courts

There are various reasons to make use of regional languages as well in the High Courts, this is because many citizens in the country are not well versed in English and so they sometimes avoid filing about the wrongdoer, to avoid the difficulties posed by the language. Many people who reside in rural areas or comparatively backward areas are more familiar and comfortable with the local language. Most importantly, the provision of allowing the use of regional language would make the legal system more inclusive, as it would allow non-English speaking lawyers in the court as well as it would allow those not well versed with English to get a lawyer and a fair chance of representation.

Reasons for Continuing the use of English in the High Courts

It is believed that the use of English would maintain uniformity in the system as many cases are referred to Supreme Court and it is not possible for everyone to know every local language, and the translation issue is that sometimes people misinterpret what is written and it also becomes difficult to find out a word with the same meaning in the other language that fits in the context of the original judgment/ pleadings. The use of regional language in the courts would also violate the right to employment as this provision would restrict jobs only to those who are familiar with the local language.

Justice During Covid-19 Pandemic: Language concerns faced in E-Courts

The world relied on the internet and technology more than before during the COVID-19 Pandemic, especially during the lockdown, everything was shifted to the virtual platform, from virtual schools to virtual jobs, and this had an unprecedented impact on the legal system as well, lawyers were unable to access new cases, litigation was ceased but the Indian Legal System had changed its traditional working methods and accepted to the new normal. To ensure that justice was not disrupted, courts became virtual and did teleconsulting and virtual meets with the clients.

Legal professionals ensured and took most of the steps to not let the lockdown become a restriction in accessing justice, but the question is if everyone in the country could access justice despite taking so many measures to continue with the court proceedings.

The E- courts were not completely inaccessible but in India, many people were not comfortable with continuing work online, and this was new for almost everyone and so in the beginning there were certain difficulties faced by the legal professionals as well as the citizens, such as lack of data on the High Courts’ official websites, to continue with the efficient functioning of the courts in the virtual setting it was very crucial to update every basic detail on the site to keep the citizens updated, another issue was the up-gradation of the technology to make the working of the e-courts possible cost-effectively. [19] Other than these, there were other concerns such as privacy and data security-related concerns, as everything was done online setting, people were concerned with their data and the online transaction being leaked, and due to lack of awareness about the working of e-courts projects amongst lawyers and litigants, not many lawyers were able to represent citizens in the online setting.

In a survey[20], it was found that only 48 per cent of litigants were aware of the e-courts and 17 per cent knew about the e-courts portal, and out of these only 6 per cent were able to efficiently access the e-courts, the lack of participation and representation in e-courts was there because of the technicalities it had and the 6 per cent who were able to access the e-courts because they might know how to use a computer.

The other major issue which occurred while accessing the e-courts was that of language, the issue of language in e-courts is often ignored and is not given the importance it deserves, through this research, I found out that the language issue is pertinent in the legal system from a very long time and very little has been done to solve it. Like physical courts hearing language issue was a problem in the virtual courts as well, initially most the people and to some extent, even lawyers/ advocates were not able to access the e-courts portal because the information used to be uploaded in the English language, but when this issue was brought up by the people affected certain steps were taken to not let language become a hindrance in accessing virtual courts.

Justice D.Y. Chandrachud ordered to translation of the e-courts website into twenty-two languages and also ensured that translation was done efficiently so that the meaning and interpretation of the judgment didn’t change in the process of translation.[21] Other than this he also requested the governments to ensure every village had proper internet availability to access the material online and also launched a YouTube channel named ‘ eCourt Services’[22] for video tutorials on how to access eCourts and eFiling, the videos on this channel were uploaded in 7 different languages

The steps taken by Justice Chandrachud were on the pan India level, but due to a lack of knowledge about the technicalities of the e-courts, states were also required to take special measures to ensure the smooth working of the High Courts. In India, the Madras High court in Chennai had some of the best facilities to provide efficient services in the e-courts, the state took up many projects related to e-courts in several different areas including the language; the Madras High Court apart from translating the language of the e-court portal to Tamil, provided a translation of the judgments in Tamil as well[23], and the state also added a feature to the website called the ‘e- finder’[24] to find the previous, pending or upcoming cases in English and Tamil.

The Madras High Court launched e-court services mobile app,[25] this app was made in five regional languages, namely, Hindi, Marathi, Tamil, Kannada, and Gujarati. The app was translated into these languages because in Chennai, apart from the majority of Tamil speakers, these languages were also spoken widely, and to make e-court proceedings easier for them to understand the translation to these languages was done.

Ensuring justice in e-courts was difficult initially but it became a little better with time and efforts made by different states to ensure smooth and proper access to the virtual courts.

Analysis of the Current Language situation in the High Courts of the Country

During my research, I found out that, steps are being taken to ensure language justice in the High Courts of the country, but those steps lack proper implications, some other problems come up when comes to implementing these steps and it violates Article 19(1)(a) of the citizens of the Country.

Most of the High Courts in the country have started to translate their official High Courts’ website into Hindi and regional languages but still, some of the states are yet to start with this provision. Only Uttar Pradesh, Bihar, Rajasthan Madhya Pradesh, and Tamil out of the 29 states have begun court proceedings in the local languages. Recently, the Haryana government made a mandatory provision to use Hindi in the Punjab and Haryana High Court.

During the time of lockdown because of the COVID-19 Pandemic, Indian courts were shifted to a virtual platform, it was a progressive step to ensure justice but language issues were present in these courts as well as so to remove those various steps were taken but the most efficient and progressive measures were taken only by the Madras High Court in the Country.

Currently, the language policy in the High Courts of most of the states is English, some states have adopted the use of local language and many states are fighting to adopt local languages for a long time now but they don’t implement the measure because of the provisions mentioned in the Article 348 and time and again Supreme Court have also recommended the central government to amend Official Languages Act to add a provision to use to local languages in the High Courts to ensure justice for everyone but not much has been done in that area as well. All things considered, India has a long way to ensure language justice in the legal system.

Conclusion

Ensuring language justice in the High Courts is an essential part of the legal system, the use of local language upholds the fundamental rights of the citizens and vis-à-vis increases the legal representation as it would make those not well versed with English to approach courts,

Language policy in the High Courts has been taken into consideration by the states for a long time and some states did implement local language policy after much deliberation, but the majority of states are yet to implement it.

India has a long and kind of rough path ahead to implement the local language policy in the High Court but India can cross that as many states have begun work on it and Supreme Court has also started to actively participate in implementing the policy to use regional languages in the High Courts’. So with the proper planning and policies, India might be able to achieve a language inclusive policy in the legal system and ensure justice for everyone.



Disclaimer- “The author undertakes that the work submitted is an original creation of the author. The author has not previously submitted the article for the purpose of publication. Any similarity with previously published content is not intentional. The author shall be personally liable for any infringement of intellectual property of any person, organization, government or institution”



REFERENCES


[1]Amit Jaiswal, The Language of Justice, The Indian Express, June 29, 2020, at A1. https://indianexpress.com/article/cities/chandigarh/haryana-governor-hindi-language-judicial-system-6480797/

[2]BhardwajShrutanjaya, Courtroom Language and Article 19(1)(a) (August 31, 2019). Journal of National Law University Delhi [doi: 10.1177/2277401720917535], 2019https://ssrn.com/abstract=3605002

[3]IND. Const. art. 19, 1(a)

[4] Kajal S Josh, Official Language of Union of India (January 2020). International Journal of Advanced Research and Development https://www.ijarnd.com/manuscripts/v3i2/V3I2-1207.pdf

[5]Mr. Ayyangar’s justification for the use of English in courts https://www.ijarnd.com/manuscripts/v3i2/V3I2-1207.pdf

[6]Krishnadas Rajagopal, Consider including more languages in governance: CJI S.A. Bobde, The Hindu, August 13, 2020, at A1. https://www.thehindu.com/news/national/consider-including-more-vernacular-languages-in-governance-cji/article32346895.ece

[7] Notification Draft of the Environment Impact Assessment (EIA) https://www.lexology.com/library/detail.aspx?g=6efb1422-5ed5-49ec-99e8-1df9edf83657

[8] PTI, Delhi HC directs Centre to ensure draft EIA 2020 is published in all 22 Indian languages within 10 days, July 02, 2020, at A1. https://www.newindianexpress.com/nation/2020/jul/02/delhi-hc-directs-centre-to-ensure-draft-eia-2020-is-published-in-all-22-indian-languages-within-10-d-2164159.html

[9] Staff Reporter, Centre wants review of Delhi High Court order for translation of EIA draft, September 04, 2020, at A1. https://www.thehindu.com/news/national/centre-wants-review-of-delhi-high-court-order-for-translation-of-eia-draft-in-all-22-languages/article32520947.ece

[10]Amit Jaiswal, The Language of Justice, The Indian Express, June 29, 2020, at A1. https://indianexpress.com/article/cities/chandigarh/haryana-governor-hindi-language-judicial-system-6480797/

[11] Special Correspondent, will take steps to make Tamil the official language of the High Court, July 05, 2019, at A1. https://www.thehindu.com/news/national/tamil-nadu/will-take-steps-to-make-tamil-official-language-of-high-court/article28288080.ece

[12] Syed Khalique Ahmed, Gujarat wants High Court proceedings in the local language, send a reminder to the center, May 04, 2012, at A1. https://indianexpress.com/article/cities/ahmedabad/gujarat-wants-high-court-proceedings-in-local-language-sends-reminder-to-centre/

[13]‘Language of law has to be English only’, October 07, 2021, https://timesofindia.indiatimes.com/city/ahmedabad/language-of-law-has-to-be-english-only/articleshow/86820042.cms

[14] PTI, Maharashtra government mulls making Marathi official language of High Court, March 11, 2016, at A1. https://economictimes.indiatimes.com/news/politics-and-nation/maharashtra-government-mulls-making-marathi-official-language-of-high-court/articleshow/51363581.cms?from=mdr

[15] PTI, Maharashtra government mulls making Marathi official language of High Court, March 11, 2016, at A1. https://economictimes.indiatimes.com/news/politics-and-nation/maharashtra-government-mulls-making-marathi-official-language-of-high-court/articleshow/51363581.cms?from=mdr

[16]Hetal Vyas, English or Marathi: Bombay HC will decide on its official language, on November 19, 2013, at A1. https://www.dnaindia.com/mumbai/report-english-or-marathi-bombay-hc-will-decide-its-official-language-1325181

[17]Hetal Vyas, English or Marathi: Bombay HC will decide on its official language, on November 19, 2013, at A1. https://www.dnaindia.com/mumbai/report-english-or-marathi-bombay-hc-will-decide-its-official-language-1325181

[18] Amit Jaiswal, Implications of imposing the Hindi language in Punjab and Haryana High Court, June 18, 2020, at A1. https://indianexpress.com/article/cities/chandigarh/implications-of-imposing-hindi-language-in-punjab-and-haryana-high-court-6464549/

[19]eCourtsinIndia_Vidhihttps://vidhilegalpolicy.in/wp-content/uploads/2019/05/eCourtsinIndia_Vidhi.pdf

[20]eCourtsinIndia_Vidhi pg. 22, Lack of Awarenesshttps://vidhilegalpolicy.in/wp-content/uploads/2019/05/eCourtsinIndia_Vidhi.pdf

[21]Legal Correspondent, ‘E-courts site to be available in 22 languages’, September 18, 2020, at A1. https://www.thehindu.com/news/national/tamil-nadu/e-courts-site-to-be-available-in-22-languages/article32634832.ece

[22]eCourt Services YouTube Channel https://www.youtube.com/channel/UCPMHFB1lou-P_YtErFFYjgw

[23]Legal Correspondent, ‘E-courts site to be available in 22 languages’, September 18, 2020, at A1. https://www.thehindu.com/news/national/tamil-nadu/e-courts-site-to-be-available-in-22-languages/article32634832.ece

[24]eFinder, an initiative by Madras High Court, https://ecommitteesci.gov.in/project/e-initiatives-of-madras-high-court/

[25] Court notices go digital, to he served through mobile apps, September 18, 2020, at A1. https://www.newindianexpress.com/states/tamil-nadu/2020/sep/18/court-notices-go-digital-to-be-served-through-mobile-apps-2198357.html



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