#TamilInHighCourt: A Demand for Democratic Rights

On Wednesday last week (October 7 2015), a protest was organized at Parrys Corner in Chennai demanding the use of Tamil in the Madras High Court. As the protest began at about 3 PM, twitterati too expressed its support to the cause by tweeting with the hash tag #TamilInHighCourt. The hash tag was trending in the afternoon for a while, not only in Chennai, but also notably in Bengaluru. Many Kannada speakers expressed their support to the protest via twitter.

Earlier, the issue caught wide attention when lawyers demanding the use of Tamil in the High Court barged into court rooms stalling proceedings, leading to the arrest of several of them. While the Chief Justice of India chided the lawyers for their method of protest, Justice Markadey Katju, former Supreme Court Judge backed the demand of agitating lawyers and asked Jayalalitha, the Chief Minister, to make use of the provisions of article 348(2) of the Constitution to permit the use of Tamil in the High Court.

The demand of the advocates to use Tamil is legitimate and fair. In fact, all court work in Tamil Nadu should have long been conducted in Tamil. Similarly, every High Court in the Indian Union should conduct all its official work and transactions in the official language of the respective state. Unfortunately, the Constitution does not permit this!

Yes, this is true. While a lot is being said about the constitutional provisions for the use of the states’ official languages in the respective high courts, it is to be noted that these provisions actually permit the use of the state language only in proceedings. There is no binding on the courts to use the state language in order, decrees, judgements or any other internal work. Here is the full text of article 348(2):

(2) Notwithstanding anything in sub clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise 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: Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court

Conducting court proceedings in the state language is imperative, so is the use of the state language in all internal work of the courts. Courts are public institutions of paramount significance. And being public institutions they should function in the language of the public. People should have the right to use their language in courts, and no government should restrict such use or force the use of another language. 

This view is also supported by UNESCO’s Universal Declaration of Linguistic Rights. With respect to use of people’s language in courts, article 20(1) of the declaration says:

“Everyone has the right to use the language historically spoken in a territory, both orally and in writing, in the Courts of Justice located within that territory. The Courts of Justice must use the language specific to the territory in their internal actions and, if on account of the legal system in force within the state, the proceedings continue elsewhere, the use of the original language must be maintained.”

What happens if a case moves to the Supreme Court? While the Constitution provides for the use the state language atleast in the proceedings of the High Courts no such provision is available in the case of the Supreme Court. People without the knowledge of English are severely disadvantaged in India’s justice system.

Coming back to the high courts, apart from limiting the scope for the use of state’s official language, the provisions of article 348(2) also lead to a few, more fundamental questions. 

What is the need for the Governor to authorize or the President to consent the use of a language in a high court? Should not the use of the state’s official language in courts be made mandatory by default? On what basis is the use of state’s language approved or denied? Why is the Governor, an appointed nominal head, and not a democratically elected representative like the chief minister, given the power of authority to authorize the use of a language? 

Whatever may be the answers, there can be no justification based on principles of democracy.

Another cause of concern is the provision to authorize the use of Hindi in high courts of non-Hindi states. There is nothing that prevents the Governor, who is neither an elected representative nor answerable to the people of the state to authorize the use of Hindi in, let’s say, Karnataka. No democratic state would permit such forceful imposition of a foreign or a non-native language on its people. But unfortunately, the laws of the Indian Union do.

Also, Hindi states like Madhya Pradesh, Rajasthan, Bihar and Uttar Pradesh have already been permitted to use Hindi in the respective high courts, while no other state high court is permitted the use of the state’s official language yet. The bias of the Indian Union towards Hindi and its speakers, and the resulting discrimination against the non-Hindi peoples, is well known and we have explored this subject in several earlier articles in Karnatique. So, even in cases where the law permits the use of non-Hindi languages on par with Hindi, they are either long denied or ignored.

It is evident that the questions and concerns raised above highlight the lack of basic democratic tenets in some of the provisions of the Constitution. To be just and fair to all the diverse linguistic communities of India appropriate constitutional amendments are required so that the principles of democracy are induced into the functioning of courts and other public institutions.

It is good to see the lawyers of Tamil Nadu come out in protest demanding their linguistic rights. Other linguistic communities, majorly Kannada, Marathi and Bengali speakers, have expressed solidarity with the lawyers of Tamil Nadu. Such external support goes far in lending strength to such demands. I hope other linguistic communities too demand the use of their language in their state high courts. And as people of every state demand the use of their language in courts, it is important that they support each other.

But this should not be the end. This should be the beginning. These protests have targeted to implement whatever is permissible within the circumference of the law. But as we saw in this article, the law itself possesses some fundamental flaws with respect to democracy and linguistic rights of non-Hindi peoples. Unless these flaws are fixed, justice and fairness will remain a far-fetched dream. Hence, in the long-term, all citizens of India should unite to advocate linguistic equality in the Indian Union with the ultimate aim of eliminating all discriminatory laws and provisions.

That Linguistic States Donot Have a Historical Basis is a Lie

In an article in scroll.in, Mohan Guruswamy, columnist and commentator on economic policy and current affairs, says this about the composition of India as a union of linguistic states:
India was never meant to be a union of linguistic states, but a union of well governed and managed states. Thus, the demand for newer administrative units will be a continuous one, seeking to bring distant provincial governments in remote capitals closer to the people.
Talking further about linguistic states he questions their historical basis:
Similarly, Andhra Pradesh, Karnataka, Maharashtra, Gujarat and other linguistic states have no historical basis. The yearning for linguistic sub-nationalism is a post-independence phenomenon. Often this linguistic sub-nationalism has been a fig leaf for secessionism, as we have seen in Tamil Nadu in the past.

Was India not meant to be composed of linguistic states?

On what basis does Mohan Guruswamy claim that India was never meant to be a union of linguistic states? In the initial years after India’s independence from British rule many leaders, including Jawaharlal Nehru, were against the idea of linguistic states for the fear that it may lead to disintegration of India. It is only because of the pressure of relentless protests from people of different linguistic groups that the leadership agreed to constitute a States Reorganization Commission, albeit reluctantly. Be it the demand for Andhra Pradesh, Maharashtra, Karnataka or Punjab, the protests were so intense that the Indian Union had to give in to widespread protests.

So, in saying “India was never meant to be a union of linguistic states”, it is obvious that the author merely echoes the thoughts of some of the leaders of the Indian Union, and does not acknowledge people’s aspirations as was evident on the ground that witnessed wide-spread protests. Didn’t the Kannadigas, for example, then spread across several administrative provinces express their desire to come together under a single state? Didn’t the Marathis and the Gujaratis express their desire to have their respective states carved out of the Bombay Presidency?

The demand for linguistic organization of states is not a post-independence phenomenon

Yes, the demand for linguistic organization of states is not a post-independence phenomenon, unlike the author's claims.

The state of Odisha (Orissa) was formed in 1936 as a distinct linguistic province in British India. It involved the merger of Odia speaking regions of a few princely states and the British ruled Bihar and Madras presidencies. The movement to unite all the Odia speaking regions, itself began in 1895. It was at about the same time, ie., the late 19th century that several such linguistic movements started across India. The demand for a unified Karnataka, for example, soon gained ground after the establishment of the Karnataka Vidyavardhaka Sangha, in Dharwad in 1890. Though Karnataka had to wait till 1956 to unite all the Kannada speaking regions, the movement continued all through the pre-independence days.

The Congress was instrumental in directing such linguistic yearning towards strengthening the forces of Indian nationalism fighting against the British. While the Congress leaders were in favour of linguistic organization of states before independence, post-independence they feared that it would lead to balkanization of India. Sankar Ghose, in his book ‘Jawaharlal Nehru, a Biography’ writes:
While the British favoured multi-lingual provinces in order to dissipate the forces of nationalism, the Congress reorganized itself on linguistic basis in the hope of making the party more acceptable to different regions. This helped, as Nehru claimed, to transform the Congress from a middle-class assembly to a mass organization; but as the States Reorganization Commission later commented, ‘the national movement was built up by harnessing the forces of regionalism’.
As Prime Minister, Nehru favoured the British policy of not having linguistic states but he hesitated to be firm in the matter because of the past commitments of the Congress.

Historical Basis of linguistic identities

In the subcontinent, speakers of a language, identifying themselves as one people and of one nation, despite being spread across several adjacent kingdoms or administrative units is quite ancient. Such identification, which Guruswamy disapproves of as ‘sub-nationalism’ is much more ancient than the idea of Indian nationalism itself.

Take for instance the identification of Kannada speakers as one people. In the ninth century Kannada work ‘Kavirajamarga’ written under the patronage of the Rashtrakuta emperor Amoghavarsha Nrupatunga, the boundaries of Kannada – the naadu (nation) – are defined. The poet defines the boundaries as the Godavari river to the north and the Kaveri to the south, and identifies the region between these as the naadu of Kannada people. He describes several qualities of the Kannada speaking people with immense pride. And this was about a millennium before the idea of Indian nationalism was seeded.

It should be noted that Kavirajamarga is the earliest fully available literary text in Kannada. So, the idea of Kannada speakers as one people must have been much older than what has been recorded in the earliest available literature, as evinced by several other indicators, like the army of Pulikeshi, who ruled two centuries before Amoghavarsha, was referred to as ‘Karnata Bala’. How can such a linguistic identity, known to have long existed in history, be dismissed as regionalism or sub-nationalism?

Bringing government closer to people

The argument that the state capitals are remote and that smaller administrative units need to be created to bring provincial governments closer to people does not hold much ground when you consider the fact that much of the power is centered in New Delhi, with the state capitals being mere ‘glorified’ municipal bodies that implement the Union Government’s schemes and projects. In the previous article in Karnatique we explored the imbalance of power owing to more than twice the number of subjects that New Delhi has jurisdiction over than what the state capitals do.

What is more interesting is that the number of subjects in the state list has gradually reduced from 66 to 61 over the years – these subjects were moved up to the concurrent and the union lists. And with a strong affinity towards centralization, the trend is sure to continue. Considering its enormous physical, linguistic and cultural remoteness from India’s diverse peoples, such accumulation of disproportionate powers at New Delhi is anything but bringing government closer to people.

But Guruswamy who is so desirous of bringing government closer to the people, advocates the idea only in the context of provincial governments and is deviously silent in the context of the all-powerful Union Government. As if to support this silence he claims “that the real concentration of power is not with the Central government but with the State governments” (we have shown in some of the previous articles in Karnatique that this is a completely baseless claim and infact the opposite is true: article1, article2, article3).

For this reason, when he talks of decentralization, citing examples from the corporate world, he only mentions decentralization from the state governments to the districts and further down. No mention is made of the current situation of the Union’s authority over the states and the need for devolution. So, his idea of small states seems to be the continuation of the Nehruvian idea of India, with states as weak administrative units under a strong Centre.

Considering the historical distinctness of linguistic identities, and the centralized nature of the Indian Union, demand from the states for more functional autonomy is genuine, and it does not necessarily have to be seen in the light of individual personalities like J Jayalalitha, Mamata Bannerjee or Mulayam Singh Yadav. Being leaders of state parties they are more answerable to the electorate that voted them to power than to a New Delhi high-command – a highly undemocratic culture prevalent in the so-called national parties, in the guise of national interests. So, the demands of states for more autonomy cannot be brushed aside as regional jingoism. It is because of the unfounded fear of disintegration that the Delhi establishment terms this as regionalism, and hence is less willing to devolve.

Division of the Telugu people, through undemocratic display of power and dominance, may have been successfully executed for now. But refusal to acknowledge genuine linguistic identities and condemning them as jingoism, and attempting to divide them citing reasons of regional economic imbalances and better manageability will backfire in the future. Finally, Guruswamy makes the statement that “small states are a must if we have to keep the Republic healthy and strong”. Given the surreptitious intentions behind the idea of smaller states, the claim that it leads to a healthy and strong republic is fictitious.