Report No. 216
Dr. R.G. Padia, Senior Advocate
"Report Regarding Recommendation No. 16.8(D) & 16.8(E) of The Parliamentary Committee
In any country, democratic or otherwise, language is a vehicle of great importance not only emotionally for its people, but also as a very formidable means of the process of thinking as well as its communication to others. In a democracy, however, its importance becomes of particular importance, since one of the basic rights in a democracy conferred on every citizen is the Freedom of Speech and Expression in any way and in any manner that a citizen desires to express.
In those democracies, which are based on the concept of Federalism, its role is still more vital since there are divergent and different views of the people belonging to different regional entities and their conflicting claims have to be reconciled in various fields including their languages. Federalism demands its own price to be paid and one of such relevant factors is the problem of finding out consensus in respect of recognition and use of a common language.
In a Federal Constitution, the political structure in various States may be entirely heterogeneous, i.e, one region may opt for its political institutions, the concept of liberal democracy, while another may opt for the principles based on marxism, and yet another region may opt for the system based on a particular religious faith and the policies emanating from the same. Populations comprising in such diverse regions may have their own distinct language, spoken as well as in script.
Thus, there may be not only a case of bilingualism, but, in fact, even a case of multilingualism, and balancing of such conflicting interests is a major difficult task. Experience has taught us that in India with a very huge population and with 28 States and 7 Union Territories, such task of making a delicate balance is rather difficult. The great author, Granville Austin in his classic Treatise 'The Indian Constitution - Cornerstone of a Nation' has rightly observed that the solution that has been evolved after marathon discussion in the Constituent Assembly is the halfhearted compromise.
2. While drafting the Constitution itself, there was a massive debate over the question of language to be adopted in the country and the proceedings of three dates, i.e, 12th September, 1949, 13th September, 1949 and 14th September, 1949 are duly reported in Volume No. IX, Book No. 4 of the Constituent Assembly Debates running from pages 1314 to 1491, i.e, more than 175 pages and only thereafter the new Part XIV-A containing Articles 301-A upto Article 301-I was duly accepted and adopted by the Members of the Constituent Assembly.
3. It is of great significance to recall that, while adopting the Preamble, inter alia, Unity of the Nation was solemnly proclaimed and thus the Founding Fathers had in their mind the greater goal for the country, namely, to maintain the Unity of the Nation, in spite of the serious difficulties in finding a total consensus over the language issue. It is also worthwhile to note that, while the Preamble lays great emphasis on various fundamental concepts, like justice, liberty, equality and fraternity, it does not refer to the language at all, but it refers to the ultimate end and that is the Unity of the Nation.
4. Under the Indian Constitution in Article 343, the official language of the Union is declared to be Hindi in Devanagari script, but the same Article has also provided that for a period of 15 years from the commencement of the Constitution, the English language shall continue to be used for all the official purposes of the Union.
5. In this connection, it is not, really speaking, necessary to recall in great detail the extremely difficult political situation that emerged in the year 1965, particularly in the Southern States when the English language was sought to be given a subordinate status and the events are well-known on account of which the status quo was permitted to be continued under the Constitution which obtains even today.
6. I would like to add in this connection one vital feature of our Constitution that the question of language is not included in Part IV, i.e, Directive Principles of State Policy. Although under Article 37 the Directive Principles are declared to be Fundamental in the governance of the country and the duty has been imposed on the State to apply these principles in making law, yet that mandate is conspicuous by its absence as far as language is concerned.
It should, however, be conceded that the implementation of various Directive Principles has been very slow like Article 45 relating to compulsory and free primary education and in respect of certain Directive Principles like Uniform Civil Code under Article 44, no progress has been made as yet. The point that I wish to emphasise is that like the Directive Principles, which are Fundamental in the governance of the country, it is likely to take substantial time in evolving consensus in finding a compromise formula to the language problem facing our country, but the delay should not be regarded as very startling or disastrous for the implementation of the Constitutional provisions.
7. It must be vehemently emphasized that the language is a very potent force for National Integration in any country, but at the same time, it is also a very potent force for National Dis-integration. In a really working and functional society, no imposition should be attempted against the will of a substantial number of people of the society and any such imposition, even in respect of language, is likely to be counter-productive, especially when the issue also involves hugely potential weapon for evoking emotional out-bursts.
An atmosphere has to be created over a very long period of time, in the mind, psyche and ethos of the people to move towards the adoption of a uniform language for their own welfare as well as for the welfare of the entire people. The development and growth of any language in any Nation is bound to be very slow and the process cannot be abrupt imposition of any particular language creating an artificial vacuum.
I must admit that our efforts for the promotion of the officially declared language of the Union, i.e, Hindi have not been fully and satisfactorily substantiated over such a long period of time, but the redeeming feature is that it does not necessarily have any serious adverse consequences. A reference can be made to a country like Canada which has two declared Official languages, namely, English and French, or a very small country like Switzerland which has three declared Official languages, namely, English, French and Italian.
Basically, one of the important elements is the internal and implicit strength of the language itself depending upon its quality and speed of growth and once it is so developed in its vocabulary and use, it by itself offers solutions to the people by making general use of the same and this aspect is Fundamental.
8. It may also be pointed out that under our own Constitution in Schedule VIII, at present, we have as many as 22 recognized languages and apart from this, under Article 347 there is also a provision that in a particular State if there is any other language which is being used by a substantial portion of the population of that State, and a demand is made on their behalf by the State concerned, then even such other language could also be officially recognized by the President as the official language of that State.
9. A mandate contained under Article 351 to strengthen the vocabulary of Hindi language based primarily on Sanskrit, and secondarily on other languages has yet to be fulfilled and we have not enriched Hindi language by incorporating a very large number of commonly used words of all other 22 languages contained in Schedule VIII. This assimilation of making other words of other languages as part of Hindi, is really vital for the growth, development and use of Hindi throughout the country and this mandate has to be effectively implemented and also expeditiously.
(Now I come to the two specific queries. As regards the first recommendation, being recommendation no. 16.8(d) :
10. Clause (1) of Article 348 is quoted below :
"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 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."
11. Under Clause (2) of the said Article, the Governor of the State may authorize the use of Hindi language or any other language either for the official purposes of the State or in proceedings in the concerned High Court subject to the previous consent of the President.
Clause (3) of the said Article provides that, where in any state, its Legislature has prescribed any language other than the English language for use in the Bills being introduced in the Legislature or the Acts passed by the Legislature of that State or the Ordinances, promulgated by the Governor of that State or has made any other subordinate legislation made in the State, a translation in the English language shall also be published in the official gazette and the same shall be deemed to be the authoritative text contained in the English language.
12. Analysis of the aforesaid provisions clearly indicates that it starts with a non-obstante clause, i.e., irrespective of what has been stated under Articles 343, 344, 345, 346 and 347. Thus, in other words, this Article has been given a pre-dominant importance.
13. The most vital part of Clause (1) of this Article is "until Parliament by law otherwise provides". Thus, the entire Article is based on the assumption that anything to the contrary could be provided by Parliament by law. It is also clear that, no special majority has been provided for Parliament, and, in fact, any ordinary law made by the Parliament will supersede all the provisions of the three Clauses of this Article. Thus, the Parliament has been given the over-riding rights under the Article.
14. In view of the scheme of the said Article, as stated above, in my considered view, there is absolutely no necessity for amending Article 348 to enable the Legislative Department to undertake original drafting in Hindi. The Legislative Department, in fact, is subsidiary wing of Parliament and thus even without amending the Constitution, the desired result may be obtained. However, whether even Parliament should undertake such an exercise is an altogether different matter and regarding that I have already made my submissions in the earlier part of my report, which may kindly be perused.
15. Moreover, our political system is based on the British Model of Cabinet Form of Government and there is a total cohesion between the two wings of the Government, namely, the Legislature and the Executive. Assuming without admitting that the Legislative Department belongs to Executive Wing, it presents no difficulty whatsoever, since the Executive can make a recommendation to the Parliament to make such a law under Article 348 and the advice of the Cabinet would be binding on the President and a law will have to be made by the Parliament on the basis of the said advice. Thus, even this hypothesis creates no fetters for the Parliament to make the intended law.
16. A closer look at various Articles contained under Part XVII, namely, Official Language, clearly reveals that the aforesaid power of the Parliament is not circumscribed by any other subsequent Article of the said Part. As regards the Recommendations of the Parliamentary Committee being Recommendation no. 16.8(e), my respectful submissions are as under :
17. The Fundamental premise of the said recommendation is, in fact, non-existent. As submitted above, Article 348 does not require any amendment as proposed by the Committee under its recommendation 16.8(d).
18. In my preface to the present report, I have already emphasized the importance of the language as also the fact that English language has continued throughout in the same role and capacity since 1950.
19. As stated above, we have not been able to enrich Hindi language as mandated under Article 351 even for the use of the common man throughout the country. I must immediately admit that we have already undertaken the task of translating various Acts, ancient as well as modern in Hindi language, but the translated vocabulary is not very workable since Hindi language itself has not been made sufficiently rich enough for its common use.
The mere textual translation of the laws, ancient as well as present, does not sub-serve the necessary purpose for delivering judgments either for the Judges or the lawyers, who are the necessary limbs for the justice delivery system. Delivery of judgment depends upon not merely the textual translation of the provisions of law, but it contains many other necessary and integral component parts like pleadings at all levels including subordinate level, evaluation of evidence, efficacy and strength of arguments at all levels in the hierarchy of the Courts.
In my personal view, the Judges of various High Courts as well as of the Supreme Court are sufficiently well-versed in the use of English language and it must be remembered that the process of delivering a judgment at the High Court or the Supreme Court level is not a mechanical process. Today, English language is very well written, spoken and received well at the High Courts and the Supreme Court by the lawyers and Judges and in my considered view, there is likely to be a complete consensus among them for the continued use of English language in the justice delivery system.
20. At present, the working system in the Supreme Court consists of submitting English translations of the pleadings, the evidence and the judgments of the authorities or the Courts below and this facilitates the Supreme Court to render its judgment. Under our Constitution, it is the Supreme Court and the High Courts which have a unique sense of importance and not departmental authorities working as quasi-judicial Tribunals.
Under the constitutional scheme of things, independence of judiciary consists of independence basically of the High Courts and the Supreme Court and not of any quasi-judicial authority or Tribunal. Moreover, it is the judgment of the quasi-judicial Tribunal or of a government authority or of the Government Department which is subject to judicial review under the Indian Constitution and not vice versa. Thus, the ultimate authority is not these Departments or the authorities, but the higher Courts.
In my view, therefore, the suggestion should be just the reverse, i.e, in order to enable these Government Departments which are carrying out the judicial/quasi-judicial functions, an authoritative text/translation of the language of their choice should be furnished to them of the judgments delivered by the Supreme Court or the High Courts.
It is for the concerned Government to develop a mechanism for such authoritative translations, particularly in the kind of language that these authorities could understand and thereafter they should be able to understand the merit and the impact of the judgments of the Supreme Court and the High Courts and act accordingly. If somehow, they are unable to appreciate the translated version of the judgments, their judgments can always be corrected by the High Courts and the Supreme Court and this is the scheme of things under our Constitution.
21. It should also be remembered that the function of a judgment of the Supreme Court or the High Courts is not merely its binding force on the concerned parties or even on all others, not merely the declaration of law of the land by these Courts, but basically it serves as a pronouncement of the law applicable to govern the relationships of all people throughout the country in their future relations and in regard to which their lis is to be decided. Thus, it is of utmost importance and for the strengthening of the rule of law and for the advancement of public interest that this important value-orientation impact of a judgment should not be affected needlessly by the language controversy.
22. In my considered opinion, the most serious objection to the Recommendation would be based on the doctrine of violation of the basic structure of the Constitution. Justice delivery system by the Supreme Court and the High Courts is the basic structure of the Constitution and this necessarily includes the manner, mode and the expression of that judgment by the particular Court. No linguistic imposition of any kind could be made upon any Judge of the Supreme Court or the High Courts obligating him not to deliver his judgment in English.
Use of language, whether Hindi or English is not a basic feature or part of fundamental structure of our Constitution, but the concept of judicial review is indeed such a part and this aspect cannot be over-emphasized and has to be kept in mind throughout. At any rate, in my well considered view, before any final decision is taken, the views of the Courts including the Judges of the Supreme Court must be taken before any action is taken towards the implementation of the Recommendations.
It is particularly so, because the Recommendation in a circuitous way imposes the study, the knowledge and use of Hindi on the Judges of the High Courts and the Supreme Court. Further, the transfer policy regarding the judges of the High Courts has not been finally given up and, in fact, is fully applicable in respect of the transfer of the Chief Justice. He normally stays for a brief time and during his stay he is already obligated to understand and use the language of his transferred State.
23. That, moreover, it is common knowledge that our Indian Supreme Court uses the judgments delivered by various foreign Courts and vice versa. The judgments delivered by our Courts are being increasingly referred to and relied upon throughout the world by the Courts of various countries. It is common knowledge that by and large, English is the language used throughout the globe in the justice delivery in the democratic world and nothing should be done which affects the relevance and the efficacy of our judgments to be used by other Courts throughout the world.
Nothing should be done to undermine the international value and utility of the judgments of our Courts, particularly the Supreme Court. Further, present is the age of globalization and there is an unfettered growth of trade and commerce, attempts to make common universal policies regarding customs and excise, removal of trade barriers and uniform investment policies. More particularly, reference must be given to the fast growing concept of Arbitration where Arbitrators decide the disputes of high stakes of the parties belonging to different countries of the world.
All these matters including the awards of the Arbitrators ultimately come to the higher Courts, i.e, High Courts or Supreme Court in India in many situations depending upon territorial operations and it will be highly inequitable and anomalous to burden our Courts not to deliver their judgments in English.
24. If the Judges are ordaining not to deliver their judgments in English, the quality of the judgments is liable to be gravely and adversely affected. One of the basic infrastructures for delivering judgments, namely, reliance on the foreign text books and foreign jurisprudential concepts delivered by jurists would be missed by our Courts.
25. Finally, I might add that present political situation is not very conducive to the implementation of the Recommendation. The language issue should not be precipitated into a kind of political rivalry in order to gain political advantage. Already there is a great deal of debate going on regarding the scope of judicial review by the High Courts and the Supreme Court pertaining to the legislative and the executive acts of the governmental authorities and the debates remain inconclusive in spite of taking place at regular intervals, very frequently and in a highly emotive way.
Any precipitate action although taken in great earnest and with strong national feeling, may result into the kind of agitations that the country has already faced long back in the year 1965 and ultimately the remedy may turn out to be worse than the disease."