Thursday, March 27, 2014
IMPOSITION OF ENGLISH IN JUDICIARY
You must have read the government appeal at the railway stations and other government offices to use Hindi; but are you aware that in this so called biggest democracy of the world, even after sixty-six years of independence, one cannot use Hindi or any other Indian language in the Supreme Court of India?
Moreover it is not due to the arbitrary action of any government official, it is in accordance with the provision of the Indian Constitution. Sub-clause (a) of clause (1) of article 348 of the Indian Constitution states, “all proceedings in the Supreme Court and in every High Court shall be in the English language.”
Although clause (2) of the same article does specify that the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language or the official language of the State in the proceedings in the High Court of that State. This clause further states, “Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court".
So even this clause provides for only limited use of any Indian language in the High Courts and doesn’t make the status of any Indian language equivalent to English language. But even the limited use of any Indian language under this clause has been provided in only four High Courts of India after sixty-six years of independence.
The use of Hindi was authorised in the High Court of Rajasthan on February 14, 1950. After that Hindi was authorised in the High Courts of UP, MP and Bihar in the years 1970, 1971 and 1972 respectively. Therefore, no Indian language can be used in any of the remaining seventeen High Courts and the Supreme court of India.
In the year 2002 the government (Governor) of Chhattisgarh asked for the consent of the Central government (President ) to authorise the use of Hindi in its High Court. Similarly in the years 2010 and 2012 the governments of Tamil Nadu and Gujarat asked for the consent of the President to authorise the use of Tamil and Gujarati in their High Courts. But the Central government declined the consent in all these three cases. This is not only the undemocratic and anti-people attitude of the government, it is also an attack on the federal structure of the Constitution.
I don't know which other state governments asked for such consent prior to the year 2002. But there is no such provision in the Constitution that the President or any other authority can authorise the use of one or more Indian languages in the Supreme Court. So the obvious way to authorise the use of one or more Indian languages in the Supreme Court is to amend article 348 of the Indian Constitution. After the amendment the clause (1) of article 348 of the Indian Constitution should state, “all proceedings in the Supreme Court and in every High Court shall be in at least any one Indian language in addition to the English language.”
Under this amended provision one should be able to use at least Tamil besides English in the Madras High Court, at least Kannada besides English in the Karnataka High Court, at least Hindi besides English in the High Courts of Chhattisgarh, Delhi, Jharkhand, Uttarakhand and Himachal Pradesh and similarly at least the official language of that state besides English in the other High Courts of India and at least Hindi besides English in the Supreme Court of India. A noteworthy thing here is that in the Parliament the MPs are allowed to speak in all the 22 Indian languages in the eighth schedule of the Indian Constitution besides in English.
The audience has the option to hear the speech either in the original Indian language or its instant translation either in Hindi or in English. It is desirable that people are allowed to seek justice in more than one Indian language in every High Court and the Supreme Court under this provision of translation but prohibiting the use of even any one Indian language in these courts is the clear example of the motive of the ruling elites to exploit the masses.
It is the right of every citizen to speak on his or her own regarding his or her case in the court irrespective of whether he or she has hired any lawyer or not. But according to the existing provision of article 348 of the Constitution ninety-seven percent (97%) of the Indians, incapable of speaking in English, are being deprived of this right in the Supreme Court and the seventeen High Courts of India.
Any one of these 97% Indians will be forced to hire an English knowing lawyer if he or she files any case in these courts or if somebody files any case against him or her in these courts, whereas it is the right of every individual to fight his or her case without hiring any lawyer. Even if somebody hires any lawyer he or she is not able to understand whether the lawyer is presenting the important points about his or her case or not.
If the people residing in Rajasthan, UP, MP and Bihar have the right to use Indian language in their High Courts, why shouldn’t the people residing in other states have the same right?
Is it not a discrimination against them? Is it not a violation of the fundamental rights of “Equality before law” under article 14 and “Prohibition of discrimination on the ground of place of birth” under article 15 of the Constitution? And on this basis hasn’t the Central government insulted the Constitution and acted against the interest of the people of the country by rejecting the demands of the government of Chhattisgarh, Tamil Nadu and Gujarat?
To say that the use of Indian language will be allowed only in the High Courts of Hindi speaking states (Rajasthan, UP, MP and Bihar) is clearly an unjust and discriminatory treatment to the non-Hindi belt people; but even if this logic is to be accepted in any manner then why is Hindi not authorised to be used in the High Courts of Himachal Pradesh, Chhattisgarh, Delhi, Uttarakhand and Jharkhand?
Indian languages are authorised to be used in the lower courts and district courts. So when a case comes as an appeal after the judgment in the district court, there is a wastage of time and money in translating all the documents into English. The situation is analogous when a case is filed as an appeal into the Supreme Court after any judgment in the High Courts of Rajasthan, UP, MP and Bihar.
Even if one Indian language is authorised to be used in each High Court and Supreme Court in addition to English, then the problem of translation into English will almost disappear upto the High Court level in the entire country and even at the Supreme Court level the documents of only those cases will need to be translated which will come there as an appeal from the non Hindi region High Courts which were originally heard in the Indian languages.
Apart from saving the time and money in translation the proposed legislative change will also increase the possibility of the same lawyer working at the lower court and district court level to work as the lawyer at the High Court and the Supreme Court level, which will reduce the cost of litigation.
At present there is complete reservation for the 3% English knowing elites in the opportunities for doing legal practice and becoming Judges in the High Courts and the Supreme Court. It is against the objective of the Constitution to secure to all its citizens the “equality of opportunity” as stated in the Preamble of the constitution and violates the fundamental right of “equality of opportunity in matters of public employment” under article 16 of the Constitution.
Besides violating the various constitutional provisions stated earlier, article 348 in its present form violates numerous other provisions of the Indian Constitution. Some of these additional constitutional violations are stated below:
· According to its Preamble the Constitution of India is supposed to constitute India into a “Socialist Democratic Republic” and it ought to secure to all its citizens 'justice', ‘Equality of status and of opportunity’ and to promote among them all ‘Fraternity assuring the dignity of the individual and unity and integrity of the Nation.'
· Article 38 --- State shall promote the welfare of the people. Article 39 --- The state shall secure that the citizens have the right to an adequate means of livelihood. Article 39 A --- The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and that opportunities for securing justice are not denied to any citizen by reason of economic and other disabilities.
· Article 51 A – “It shall be the fundamental duty of every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom and to promote harmony and the spirit of common brotherhood among all the people of India transcending linguistic and regional or sectional diversities.” [It is a well known fact that ‘Swaraj’ or ‘Self Rule’ was the guiding principle of our freedom struggle and the use of Hindi and other public languages and opposition to the imposition of English on the masses of India was Gandhijee’s principle and popularisation of the National language was one of the core issues of his constructive programmes. Clearly our ruling class is violating its constitutional fundamental duty by protecting article 348 in its present form.]
· Article 343 --- The official language of the union shall be Hindi. Article 351 --- It shall be the duty of the Union to promote the spread of the Hindi language, to develop it and to secure its enrichment.
Amending article 348 is an issue which cannot be postponed on the basis of the scarcity of resources. As described earlier the proposed amended form will save lot of resources because of saving of time and money in translation and reduced cost of litigation in hiring the lawyers.
The existence and continuation of article 348 in its present form is a clear proof of the tendency of our ruling class to exploit the masses intentionally. It renders our independence ineffective and inoperative. It is a continuation of the exploitative colonial provision. Does independence mean merely the replacement of the ‘Union Jack’ by ‘Tricolour Flag'?
India is supposed to be the biggest democracy of the world but can there be democracy in a country where people don’t have access to justice in their own language? All the developed countries of the world make it amply clear that a country makes tremendous progress by working in the public language.
There cannot be a proper participation of the talents of the general citizens of a country in its developmental process by working in a foreign language. It can be verified that the countries holding topmost positions in the world on the basis of per capita income work in their public languages and the countries of the world ranking at the bottom most positions in per capita income can be seen to be working in foreign languages.
Only those underdeveloped countries of the world work in some foreign language where the dishonest elite class makes use of the foreign language as the weapon for exploitation of the masses and wants to secure complete reservation for itself in the opportunities for development through it.
We [Nyay Evam Vikas Abhiyan] have been requesting the various responsible persons in the government of India and political parties since March 2012 to amend article 348 of the Constitution. When we expressed our intention to sit on “Satyagraha” on this issue outside the house of 'Smt Sonia Gandhi', President, INC and Chairperson, UPA on September 11, 2012 then we were requested to wait for a week.
After that we tried to sit on Satyagrah on September 19 outside the house of 'Smt Sonia Gandhi'. But police kept us arrested in the Tughlak Road Police Station. At about 8 PM we agreed to discontinue our Satyagrah for six days with the assurance that the matter would be looked into within six days.
On September 21 we were informed that Soniajee had referred our letter to Sri Oscar Fernandes, General secretary, Congress Party to give his report on that issue. Oscarjee called us for meeting on five different dates from September 23 to October 30. He wrote a letter to Sri Salman Khurshid, the then law Minister, on this issue and sent his report to Smt Sonia Gandhi by his write up dated October 29, 2012. We were quite satisfied with his letter and report.
On October 30, 2012, Oscarjee had expressed the hope that a constitution amendment bill would be introduced in the winter session of the Parliament. But when no such announcement was made, we wrote to Soniajee on November 14 and November 28. We sat on Satyagrah continuously since December 4, 2012 (up to July 16, 2013) outside the house of Smt Sonia Gandhi and the head office of the Congress Party. But most of the time police kept us arrested in the Tughlak Road Police Station.
I didn’t go out anywhere like house, post office, bank, market etc. since December 4, 2012 (tll July 24, 2013). At about 5:30 pm on July 16, 2013 the SHO of the Tughlak Road Police Station arrested me and I was sent to the Tihar Jail on July 17, 2013 on false and fabricated charges. On July 24, 2013 I was released from the Tihar Jail on the condition that I shall not sit on Satyagrah outside 24, Akbar Road.
We request the seekers of justice to exert pressure on the government of India for introducing the Constitution Amendment Bill in the Parliament. Anybody can contact me on the phone no. 09818216384.
SHYAM RUDRA PATHAK