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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.
