Report No. 216
Kerala High Court Advocates' Association
"The General Body Meeting of the Kerala High Court Advocates' Association convened on 28.1.2008 to elicit the opinion of the members of the Association about the proposed Amendment of Article 348 of the Constitution of India. The members of the Kerala High Court Advocates' Association hereby adopt a unanimous resolution to oppose the proposed Amendment to Article 348 of the Constitution of India, in the larger interest of people of India and the Indian Legal System.
I hereby enclose a copy of the resolution of the Extraordinary General Body meeting held on 28.1.2008.
The Kerala High Court Advocates' Association unanimously resolved that all the proposed Amendments to Article 348 of the Constitution of India enabling the Legislative Department to undertake original drafting in Hindi which is expected to pave way for delivery of Judgments in Hindi instead of English language by the Hon'ble High Courts and the Supreme Court of India should be dropped.
Further, members of the Association strongly oppose that the original drafting of Bills introduced in and Acts passed by the Parliament or State Legislatures, Ordinances promulgated by the President or Governors, all Orders, Rules, Regulations and Bye Laws issued under the Constitution or under any law in Hindi instead of English language should be dropped."
"Article 348 Imbroglio
(By T.P. Kelu Nambiar, Sr.Advocate, High Court of Kerala) Article 348(1) of the Constitution of India says:
"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 a 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".
It was at a time when I was worried by lack of worries, I noticed the recommendation of the Committee of Parliament on Official Language that "Article 348 of the Constitution may be amended to enable the Legislative Department to undertake original drafting in Hindi; and after such amendment, 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; at present, these departments are unable to pass orders in Hindi, because the appeal against their orders in High Courts/Supreme Court would have to be conducted in English".
The subject-matter of this recommendation is as sensitive and important today as it was in 1949, when Article 348 was born.
Whenever I am to study an aspect relating to any provision in the Constitution of India, my mind travels back to the Constituent Assembly for the discussion on the corresponding Draft Article. Turning the pages of the Constituent Assembly Debates, I found that the Debates on the corresponding draft Articles took place on 12th, 13th and 14th September 1949.
(When the Constituent Assembly re-assembled in the afternoon 'at Four of the Clock', on 12th September 1949, Mr. President (The Honourable Dr. Rajendra Prasad) took up Part XIV-A-'Language'.
Dr. Rajendra Prasad stated:
"We have now to take up the articles dealing with the question of language. I know this is a subject which has been agitating the minds of Members for sometime. There is no other item in the whole Constitution of the country which will be required to be implemented from day to day, from hour to hour. I might even say, from minute to minute in actual practice. I have found that there are some three hundred or more amendments to these articles. If each one of the amendments is to be moved I do not know how many hours it will take."
The main speaker of the day on the subject was the Honourable Shri N. Gopalaswamy Ayyangar. Shri Ayyangar started with a bang:
"Opinion has not always been unanimous on this question. There was, however, one thing about which we reached a fairly unanimous conclusion that we should select one of the languages in India as the common language of the whole of India, the language that should be used for the official purposes of the Union.
I for one did not easily reach the conclusion that was arrived at the end of these discussions, because it involved our bidding good-bye to a language (meaning, English) on which, I think, we have built and achieved our freedom. Though I accepted the conclusion at the end that that language should be given up in due course and in its place, we should substitute a language of this country, it was not without a pang that I agreed to that decision".
Shri Gopalaswamy Ayyangar went on to say that we could not afford to give up the English language at once. "We had to keep the English language going for a number of years until Hindi could establish for itself a place, not merely because it is an Indian language, but because as a language it would be an efficient instrument for all that we have to say and do in the future and until Hindi established itself in the position in which English stands today for Union purposes". Shri Ayyangar continued:
"We then proceeded to consider the question of the language that should be used in our Legislatures and the highest courts of justice in the land and we came to the conclusion after a great deal of deliberation and discussion that while the language of the Union 'Hindi' may be used for debates, for discussions and so forth in the Central Legislature, and where while the language of the State could be used for similar purposes in the State Legislature, it was necessary for us, if we were going to perpetuate the existing satisfactory state of things as regards the text of our laws and the interpretation of that text in the courts, that 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 years to come. It is not because that we want to keep the English language at all costs for these purposes. It is because the languages which we can recognize for Union purposes and the languages which we can recognize for State purposes are not sufficiently developed, are not sufficiently precise for the purposes that I have mentioned, viz., laws and the interpretation of laws by Courts of law".
The Honourable Member concluded, with a whimper:
"I would only appeal to the House that we must look at this problem from a purely objective stand point. We must not be carried away by mere sentiment or any kind of allegiance to revivalism of one kind or another. We have to look at it from the stand point of practicability. We have to adapt the instrument which would serve us best for what we propose to do in the future and I for one agree with you, Sir, that it will be a most unhappy thing, a most disappointing illustration of our inability to reach an agreed conclusion on so vital a matter if on this point we have to divide the House. I am sure that good sense will prevail".
I should think that even at present the apprehension voiced by Shri Gopalaswamy Ayyangar has not ceased to exist. According to me, we have not still reached the stage at which Hindi language could substitute English. The position as on today has to be continued for a longtime. It is not yet time to amend Article 348 of the Constitution as recommended by the Committee of Parliament on Official Language. It is not yet time at all to ask the High Courts/Supreme Court to start delivering their judgments and decrees, etc. in Hindi.
What is the position of Hindi language now. What is today's standard of education in Hindi. How must has Hindi grown up to stand up to face the situation involved in the recommendations of the Committee. I do not find any scholarly allure in the suggestion. It would be too hasty to agree with the suggestion. The question is not one concerning filling up the blank pages of the law. The question is a loaded one.
I regret my embarrassment, but I have to say, with humble apologies to the Committee though, that there should not be any amendment on the lines suggested by the committee in a hurry, only for the reason that the Legislature/Parliament suffers from Constitutional impatience. One fault leads to the next. Serious thought should be bestowed on the question of constitutional amendments in relation to 'Language', especially when legislation is not a pastoral letter; and, further, English language is an enticing treasure.
The situation in 1949 is different from that in 2007. Technology has changed our brains, in this clicking, bleeping, flashing world of screens. These are days of E-learning, and globalization. Even Russia and China have changed their views on language. There is change on all fronts - social, political, educational, regional etc. India does not consist only of Hindi-speaking areas. The Constitutional corridor is not the preserve of Hindi. Regional languages have grown; in fact, overgrown.
Here, States reorganization based on language, has played a great part, and that, against the Hindi language. The situation of the Constitutional Court delivering their judgments in Hindi is unimaginable, in these days. Anybody concerned with the administration of justice by High Courts and the Supreme Curt, would be prepared, with little hesitation, to release his opposition to the suggestion.
When we take note of the constitution, organization, and method of appointment of judges, of the High Courts and the Supreme Court, we may have no difficulty to perceive the utter impossibility of judges delivering judgments in Hindi, especially judges with honorable ignorance of the language. Let not the inhabitants of the Constitutional Courts be disturbed.
At the end of the day, I could formulate only one conclusion; and that is, it is not yet time to act on the lines of the recommendation of the Committee of Parliament on Official Language, in regard to "Language", especially Article 348 of the Constitution. The period of 15 years stipulated in Article 343 of the Constitution can never be adhered to in the changed situation, making it impossible for a long time from now to adhere to the said stipulation. Times have changed against the stipulation. Situation has not improved in favour of the stipulation. It remains Joseph Heller's Catch-22. The soft sobs of forgotten statesmen/politicians on the question of language will not abate for a long time to come.
It is not virtuous to be obstinate."