Breaking the legal language barrier

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Breaking the legal language barrier

Tuesday, 28 November 2017 | Prashant Singh and Shobhit Mathur

Breaking the legal language barrier

It is time to accept the long-standing demand of the Department of Official language on use of regional languages in High Courts

Communication of justice is as important as the determination of justice. This recognition is imperative to ensure the integrity of our legal system. It is a shame that in independent India, legal language has prevented people from accessing justice. The complexity of statutory language has made the legal system incomprehensible to the common man. The language barrier limits the understanding of the lay man regarding his rights, exacerbates lack of awareness and effectively prevents them from accessing the justice system. To cultivate the confidence of the common man, the goal of the legal system should to eliminate language difficulties making the process of entering courts less burdensome and daunting for non-English speakers.

The idea of providing judgments in the language of the litigant has been advocated for a long time now by several High Courts. As per the current constitutional scheme, English is the official language for higher courts in India. However, serious concerns are being raised these days for providing adequate language services in courtrooms for the common litigant. The idea of prescribing the use of regional language in High Courts has been pursued by several state governments and now, even the President has made a strong case for it.

Speaking at a Kerala High Court function last month, President Ram Nath Kovind advocated for a system where translated local and regional language copies of High Court judgments are made available to litigants. The President argued that providing certified translations would benefit litigants who are not conversant in English, and otherwise would not be able to appreciate the linguistic nuance of courts that statutes necessitate.

President Kovind's statement echoes a long-standing demand of the Department of Official language with regard to the use of regional languages in High Courts. In February, the Parliamentary Panel on law and Justice, in its report presented to the Rajya Sabha, made a strong recommendation for the use of regional languages in the High Courts. The Panel's recommendation generated some controversy, as it challenged a six-decade old convention being followed by the Centre that involves the Chief Justice of India's assent on this matter.Determining the language of the courts, Article 348(1) lays down that until Parliament otherwise provides, proceedings in the Supreme Court and in a High Court are to be in the English language. As an exception to the above-mentioned general rule, however, Article 348(2) provides that the Governor of a State, with the previous consent of the President, may authorize the use of Hindi, or any other official language of the State, in proceedings in the High Court, but not with respect to the judgments, decrees and orders passed by it, which shall be in the English language as required by Article 348(1).Despite the absence of the requirement of the judiciary's assent in this, the Centre has repeatedly forwarded such requests to the Chief Justice, who has been declining them. Two years ago, there were a series of violent incidents in the Madras High Court premises, where protestors barged into court halls, demanding that Tamil be made the official language of the Court.

At the heart of this debate lies the fundamental importance of adequate language services in providing access to justice, a notion interlinked with linguistic human rights claims.Amartya Sen, in his book, The Idea of Justice, argued: “What moves us, reasonably enough, to devise so many means of delivering justice is not the realization that the world falls short of being completely just — which few of us expect — but that there are clearly remediable injustices around us which we want to eliminate”.

The issue of language is one which can be clearly characterized as a remediable injustice. Fair administration of justice and due process constitutes the central plinth of our constitutional structure. In the spirit of celebrating the remarkable linguistic diversity of India, the judicial branch must repose confidence in the functional utility of regional languages by authorizing their use in High Court. The language apparatuses at International Courts have shown that it's possible to incorporate translation services into the courts effectively. The costs are definitely worth it. Taxpayers should not be compelled to seek private translating services which enhance the cost of access to justice.

The consequence of continuing with the status quo has been the relative marginalization of the other official languages. The current language policy for higher courts has also stunted the development of a legal vocabulary which otherwise could increase legal literacy. Presently, High Courts in Uttar Pradesh, Madhya Pradesh, Bihar and Rajasthan, have already been using Hindi as an optional language. However, for orders/judgments/ decrees passed, even these High Courts are not allowed to use Hindi. A permanent change in this regard can only be brought about by a parliamentary legislation. In India, all the scheduled languages enjoy equality of status and hence, any kind of heavy-handedness should be discouraged while deliberating upon language policy.

lack of language access can deprive a person with the essence of justice. In a multilingual country, intolerance by the judicial system towards regional languages should not be allowed to remain a norm. It is about time the Parliament reforms the language policy in our courts. The integrity of the judicial system is at stake.

(Prashant Singh is a law student at Jindal Global law School; Shobhit Mathur is co-founder and executivedirector at Vision India Foundation, a Delhi based policy research organization.)

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