Official languages in district courts: A case to encourage the use of English

Recently, the Government of Haryana made the use of Hindi mandatory in all courts in the state subordinate to the High Court. There is nothing new here, as many states already have a similar provision.

It is my view that though serving the cause of litigants, mandating the use of local languages only in district courts to the exclusion of English should not be encouraged, and over time, efforts should be made to make the use of English as widespread as possible in the judicial system.

India is a country of vast diversity in languages. The Eighth Schedule to the Constitution recognizes 22 distinct languages. Like it or not, English is the lingua franca that bridges the language divide across different states. The judicial system is no exception. The Constitution also recognizes the importance of the use of English in the higher judiciary.

Article 348(1)(a) states that unless Parliament by law provides otherwise, all proceedings before the Supreme Court and in every High Court shall be conducted in English. Article 348(2) provides further that notwithstanding the provisions of Article 348(1), the Governor of a state may, with the previous consent of the President, authorize the use of Hindi or any other language used for any official purpose, in proceedings in the High Court. A further proviso states that nothing in this clause would apply to any judgment, decree, or order made by the High Court.

Therefore, the Constitution recognizes English as the primary language of the Supreme Court and the High Courts, with the caveat that when some other language is used in the proceedings of High Courts, judgments of the High Courts must be delivered in English.

In 1963, Parliament enacted the Official Languages Act. Section 7 empowers the Governor of a state to, with previous consent of the President, authorize the use of Hindi/the official language of the state, in addition to English, for the purpose of any judgment, decree or order passed by the High Court of that state. It further provides that where any judgment/decree/order is passed in any such language it shall be accompanied by a translation of the same in English.

Read with the constitutional provisions, it is clear that primacy is given to English even by this Act.

The Official Languages Act makes no mention of the Supreme Court, where English is the only language in which proceedings are conducted. All pleadings and arguments in the Supreme Court are in English. All documents annexed with the brief are to be in English, or English translations only.

The reason is simple to discern. Just like cases from all over the country come to the Supreme Court, judges and lawyers of the Supreme Court also come from all parts of India. Judges can hardly be expected to read documents and hear arguments in languages with which they are not familiar. Without the use of English, it would be impossible to discharge their duty. All judgments of the Supreme Court are also delivered in English.

Though, in 2019, the Court introduced an initiative to translate its judgments into regional languages, it is rather a tall order given the sheer volumes of judgments which the Court delivers.

An example of the difficulty in not using English came up before the Supreme Court in Madhu Limaye vs. Ved Murti[1]. One of the intervening parties insisted on arguing in person before the Supreme Court, and that too in Hindi, which was objected to by opposing counsel as they could not understand him. The gentleman refused to argue in English, refused to submit written arguments in English, and even refused to let his counsel argue before the Court. Faced with such a situation, the Supreme Court cited Article 348, held that the language of the court was English, and cancelled his intervention.

Also, a news report published in 2016 states that the then Law Minister gave a written reply in Parliament that the governments of Karnataka, Tamil Nadu, Gujarat, and Chhattisgarh sought consent of the President to use their respective regional languages in their High Courts. However, the full court of the Supreme Court did not approve of the proposal.

Interestingly, bills have also been introduced in Parliament - the High Courts (Use of Official Languages) Bill, 2016 and the Supreme Court, High Courts and District Courts (Use of Official Languages) Bill, 2018 - to mandate the use of regional languages in courts including the Supreme Court, but so far nothing has come of these.

Thus, if English is given importance in the higher judiciary, why should it be excluded altogether in some district courts? Undoubtedly, there is merit in the argument that litigants at the district court level would be better able to understand the proceedings if conducted in their own language. Yet, encouraging the use of English along with the local language is important.

It is not as if cases arise and finish only in the district courts. Many cases travel to the High Courts and up to the Supreme Court. If judgments in those cases are delivered in English, that does not help the litigant who does not understand English. In such a case, it cannot be said that the Supreme Court or High Court should deliver judgments only in a language which the litigant understands.

Allied with this is another important aspect. Most of the basic legal framework in India is centered around the Constitution and Parliamentary legislation. By now, the Supreme Court has pronounced verdicts on almost all these laws. In fact, many important state legislations have also been subjected to detailed examination by the Supreme Court. Article 141 mandates that law declared by the Supreme Court is binding on all courts in the territory of India.

Thus, if district courts across the country are expected to apply the law laid down by the Supreme Court, it follows that judges and lawyers must be able to read the Supreme Court judgments in English. Even High Court judgments, delivered in English, are binding on the district courts within their jurisdiction.

If one does not read and write and speak a language often, it is forgotten. By excluding the use of English completely, lawyers and judges in district courts may eventually be at disadvantage when it comes to reading and following judgments which are only in English. Legal language is not easy and it takes time to get used to the terms, their meanings and variations in one language. To learn them in two languages, and keep switching between them, is an extremely difficult task.

By excluding English completely from the district courts, we will end up creating a sort of artificial language-based classification between courts and legal professionals, based on their place of practice. This does not augur well for the system.

There are other consequences of excluding English in district courts. Many young lawyers who want to appear for Judicial Services examinations would be at a disadvantage while appearing for examinations outside their home states. They may clear the examination of another state, but even if appointed, they will not be able to discharge their duty unless they know the local language of that particular state. This will discourage many people from applying for Judicial Services posts outside their own state, thereby depriving the other state of the best possible talent.

Issue also arise from a practitioner’s perspective. A lawyer from one state may wish to settle down in another state for any reason, professional or personal. If that lawyer does not know the local language of his new state, then he/she will not be able to practice before the district courts in that state. This will hamper the right of the legal professional to practice in any part of the country of his/her choice.

Also, enforcing the use of local languages only in district courts can add significantly to the financial burden on a litigant if the matter goes up to the Supreme Court. Documents in the local language have to be translated into English to be filed before the Supreme Court. In some cases, this costs in excess of Rs. 10,000 depending on the volume of the brief. This is an unnecessary expense and can be avoided in some cases if English is permitted in district courts along with the local language. It is unfair to add to the cost of accessing the Supreme Court only because the documents are not in English. Many litigants are from weaker sections of society and don’t qualify for legal aid, and they can ill afford it.

This is especially true in criminal matters, where a convicted person wants to avail of all judicial remedies. For example, trial courts in Delhi record evidence in English, whereas in Uttar Pradesh the evidence is recorded in Hindi. A poor litigant from Delhi who ends up before the Supreme Court will not have the added burden of getting documents translated as they are already in English. An identically placed litigant from UP will have to spend thousands of rupees to get his documents translated.

Thus, in conclusion, it is my contention that while the use of local languages in the district courts is important, the use of English should not be excluded altogether, and efforts should be made to increase the conduct of proceedings in English over time, so that uniformity in the judicial system is achieved.

The author is a Partner at JNA Law.

[1] Madhu Limaye vs. Ved Murti, (1970) 3 SCC 378