Report No. 216
Note on the recommendation of the Parliamentary Committee asking High Courts/Supreme Court to deliver Judgments/decrees etc, in Hindi
This has reference to the Law Commission's letter seeking my views on the recommendations of the Committee of Parliament on Official Language at, S.Nos.16.8(d) and 16.8(e). I assume that this Committee must have been constituted under Article 344(4) of the Constitution.
Article 343 of the Constitution mandates that the Official Language of the Union shall be Hindi in Devanagari script. Notwithstanding the same, Clauses (2) and (3) thereof permit the use of the English language for the extended periods specified therein.
Article 343 of the Constitution reads as under:
"Notwithstanding anything in the foregoing provisions of this Part, (which means Part XVII), until Parliament by law otherwise provides -
(a) all proceedings in the Supreme Court and in every High Court,
(b) all authoritative texts-
shall be in English language."
It is therefore clear that Article 348(1) supersedes Article 343. Clause (a) of Article 348(1) posits that the language to be used in the Supreme Court shall be English until Parliament by law otherwise provides. Therefore, even pleadings and oral submissions shall be in the English language (Madhu Limaye v. Ved Murti AIR 1971 SC 2608).
Insofar as the High Courts are concerned the language shall be English until Parliament by law provides otherwise. However, Article 348(2) which begins with a non-obstante clause, empowers the Governor of the State, with the prior consent of the President, to authorize 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.
The proviso, however, makes it clear that nothing in the said clause shall apply to any judgment, decree or order passed or made by such High Court. It is, therefore, obvious that the power conferred by clause (2) of Article 348 to authorize the use of Hindi is limited to pleadings, documents and perhaps oral arguments only.
The recommendation at S.No.16(8(d) speaks of amending the Constitution. Article 348(1) makes it clear that 'until Parliament by law otherwise provides', in respect of all proceedings in the Supreme Court and in every High Court as well as the authoritative texts enumerated at (i), (ii) and (iii), the language shall be English.
It is therefore obvious that what is required is a Parliamentary legislation to alter the language from English to Hindi and not an amendment of the Constitution. It is therefore difficult to comprehend why the recommendation at No.16.8 (d) speaks of amendment of the Constitution unless the idea is to amend the Proviso to clause (2) of Article 348 with a view to remove the limitation incorporated therein.
The recommendation at S.No.16.8(e) states that 'High Courts/ Supreme Court should be asked to start delivering their judgments and decrees, etc. in Hindi' so that large number of Government Departments, who are carrying out judicial/quasi judicial functions, could be able to deliver orders in Hindi. The rationale for asking the High Courts/Supreme Court to deliver judgments in Hindi does not seem to be convincing.
To say that these departments are unable to pass orders in Hindi because the appeal filed against their orders in High Courts/Supreme Court would have to be conducted in English, betrays want of complete information. In the first place appeals do not ordinarily come directly from such executive orders to the Supreme Court, except statutory appeals which are far and few. Such orders are sometimes questioned, though rarely, under Article 32 of the Constitution.
So far as High Courts are concerned, such orders may be questioned before them, if the statute provides for an appeal, or else under Articles 226/227 of the Constitution. High Courts are already hearing appeals from judgments from lower courts in criminal cases where, under section 272 of the Criminal Procedure Code, judgments are permitted and written in regional languages as determined by the respective State Governments.
It is also common knowledge that evidence is recorded in trial courts in regional languages. There would, therefore, be no such apprehended problem if orders are written in Hindi by officers in different departments of the Government. Therefore, the rationale put forth for change in language for High Courts/ Supreme Court is perhaps based on lack of information and is far from convincing.
Over the years, because of insistence by every State Government to use the regional language as medium of instruction in schools/ colleges, with or without English, only those coming from the Hindi belt are well-versed in Hindi and not others. The duty cast by Article 351 has remained unfulfilled.
The result is that a large body of legal practitioners are belonging to the Hindi belt would not be able to write their briefs or argue in Hindi nor would they be able to understand the ratio of judgments written in Hindi, assuming judges are equipped to do so.Besides, as a result of the transfer policy every High Court has judges from other States and they cannot be assigned cases with the record being in the regional language.
Since the percentage of such judges is presently low, Chief Justices are able to manage, albeit with some difficulty, but when Hindi is applied across the board, the number of such judges will be far too many (because even judges knowing the regional language will not be conversant with Hindi) making it difficult for the Chief Justices to assign cases to such judges; necessitating the introduction of the expensive procedure of translating the records in English. This will also call for qualified translators, not easy to find. That apart, translations are far from satisfactory and do not bring out real nuance/essence.
To my mind, therefore, until Hindi spreads across the country and education is imparted in that language, it may not be advisable to ask High Courts/ Supreme Court to switch to Hindi. Replacing the regional language may not be easy because practically every State has adopted it under Article 345 of the Constitution. In the Supreme Court judges come from different States and quite a few of them would not be able to speak, understand and write in Hindi.
I am, therefore, of the view that the base to take the hop is not available and it would, therefore, be wise to leave the matter of introduction of Hindi in the State High Court to the judgment of the Governor of the State under Article 348(2) of the Constitution. He would be the best judge to decide if the time was ripe to take the step in that direction."