There is a gap between the language of the legal system and the way people communicate, restricting the access to justice
Harsimran Kalra | September 30, 2015
In September, Delhi police commissioner BS Bassi directed all employees to conduct their official work in Hindi. This change in policy has implications for access to justice and needs to be analysed in the context within which the police department works.
As per Census 2001, a majority of Delhi’s residents indicated Hindi as their mother tongue. Yet, laws in Delhi are promulgated in English, and court cases even if fought in Hindi are decided in English. Though the census does not indicate the percentage of population that is comfortable with English, it is safe to say that there is a gap between the language of the legal system and the people.
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Veteran scholar Upendra Baxi has noted that a decision had to be made whether law was meant for the operators of the legal system or also for the people, whom it was alienating. This observation is equally valid for the language of the law. Notably, the constitution guarantees equality before law as a fundamental right. It includes the right to access the law and move the justice mechanism. Despite steps like Legal Aid and Lok Adalats, access to justice for marginal groups remains restricted. As noted by former chief justice YK Sabharwal, access to justice remains weak with language barrier which can restrict access to information about a case a person is interested in or a party of; or it can restrict access to information about the legal system as a whole, reduce transparency and alienate citizens. However, this barrier crops up in the use of any one language to the exclusion of others.
Use of English as the language of law has attracted controversy since the time of writing of the constitution. The constituent assembly arrived at a compromise by allowing different official languages at the central and state levels. Accordingly, Article 345 of the constitution empowered states to adopt “any one or more of the languages in use in the state or Hindi” as the official language. In contrast, under Article 343, at the union level, both Hindi and English were adopted as official languages, with the use of English permissible for 15 years, which was extendable by the direction of the president.
Various states have adopted their languages other than Hindi as their official languages. For instance, in Delhi, Punjabi and Urdu were declared official languages in addition to Hindi; and in Uttar Pradesh, Urdu has supplemented Hindi as an official language since 1969 with the amendment of the Uttar Pradesh Official Language Act.
In relation to law making and adjudication, the constitution, under Article 348, requires the use of English as the language of the law: in legislation and adjudication at the supreme court and high courts. This allows for consistency in development of jurisprudence across states and for seamless transition of cases through various stages of appeal.
The Delhi police chief’s decision to adopt Hindi is a step towards making law more accessible to people who are more comfortable with Hindi, but it may alienate non-speakers. So far Delhi police officials were recording evidence in both English and Hindi. FIRs and evidences were recorded in the language of the witness, and English translations are made available for the court. The decision creates a doubt whether the FIRs will be recorded in English at all for use in lower courts, especially since the constitution does not explicitly mandate this.
The change may affect persons who are not adequately conversant in Hindi, and who would be vulnerable to marginalisation at the hands of the language of the legal processes. Notable among this group are the northeastern migrants who contribute to the diversity and economy of Delhi but have suffered from a nearly 500% increase in crime against them between 2012 and 2014 as per the home ministry.
The adoption of Hindi as the language of the courts has been taken up before various institutions. In 2014, a PIL was filed by Shiv Sagar Tiwari for the adoption of Hindi as the language for conduct of business by the apex court and is still pending before the court.
The issue has also been raised before parliament, where the frequency of motions calling attention to the limited use of the language has increased. Whereas during the 14th and 15th Lok Sabha motions to promote the use of Hindi, to the exclusion of other languages, were raised on four and three occasions respectively, during the 16th Lok Sabha, in slightly more than a year, the matter has been raised four times already.
MPs have also been concerned with the use of English in the higher judiciary and have sought amendments to substitute its use with regional languages. Since the 14th Lok Sabha, at least four discussions have been called for the use of Hindi and other regional languages in courts. In 2005, the committee on official language of parliament had prepared a report recommending the adoption of Hindi by the courts, and sought the law commission’s consultation on it. The commission rejected the proposal in 2008 noting that the higher judiciary was drawn from all over India, and all the judges were not conversant with Hindi and could not be asked to deliver judgments in Hindi. The commission also noted that linguistic chauvinism would impact the unity and integrity of the country, resulting in political and legal unrest.
Access to justice includes access to the law. Language plays a significant role in preserving the inner morality of the law by ensuring that law is comprehensible. This is particularly important in light of the recent demand for transparency and accountability within the government. Internal business of government departments in Delhi has so far been conducted in English, and alternatively English copies have been made available. In using Hindi, the information would be understandable by a larger segment of the population. However, this may be to the exclusion of the non-Hindi speaking minority, and detrimental to Delhi’s cosmopolitan population.
A change in language is likely to restrict access for one group or another, unless diversity in languages is maintained. The barrier has been remedied in several jurisdictions. In several legal systems around the world, courts mandatorily provide access to translators in criminal proceedings. In California, an attempt to extend the service to civil disputes is underway. In the UK, the Police and Criminal Evidence Act requires evidence to be taken in a foreign language when the witness has difficulty speaking in English and competence of interpreters is monitored through a framework agreement between the Crown and the interpretation service providers.
Indian courts too have taken steps to overcome language barriers by providing translators in recording of evidence. Yet, this does little to ensure that parties are able to understand and participate in court proceedings. Moreover, the enforcement of the requirement to provide translated judgements is sporadic. Recently, the supreme court’s intervention was required to ensure that convicts of the 16 December gangrape were supplied court orders of their case in Hindi.
The language gap between law and the people is aggravated in India, where law continues to be esoteric and obscure to large sections of the population – a limitation resulting from lack of legal awareness, and the absence of a shared vocabulary. The sudden adoption of another language is likely to undermine the evolution of Indian legal jurisprudence by demanding the use of a language the court and its participants – judges, petitioner politicians and activists – are yet to come to grips with. In these circumstances, it may do well to dwell on simplification of legal language by using style manuals and establishing departments engaged in simplification of official language.
What is surprising is that just when people have become comfortable with using the law to confront the state and private enterprises, in environmental tribunals, consumer courts, and even higher judiciary, there are attempts to change the language. It remains unclear if this is a political gimmick or an exclusion strategy.
Kalra is assistant professor, Jindal School of Government and Public Policy.
(The article appears in the October 1-15, 2015 issue)