When 30-year-old Chandni’s husband was arrested in a criminal case a few weeks ago, she wasn’t sure who to turn to. She didn’t know any lawyers. Her desperation led her to accept the expensive services of one of the many lawyers who approached her outside the court when her husband was produced at the Patiala House complex in New Delhi early in July.
Chandni cannot read or write English and she took the man on his word when he showed her a sheaf of papers in English, which he said were essential to seek bail for her husband. Her husband, Yashpal, was in the business of buying and selling second-hand electronic goods in North Delhi. Said Chandni, “I don’t even understand what my husband was doing to go to jail.”
On Wednesday, the Supreme Court website began publishing versions of its judgements translated into Assamese, Hindi, Kannada, Marathi, Odia and Telugu. More languages will be included over time. Until now, these documents were written only in English.
Since the vast majority of Indians, like Chandni, do not speak English, there has been a longstanding demand that Indian languages be used in courts across the country. While Supreme Court’s translation project is a welcome first step, legal experts do not believe it will really make the judiciary more accessible to ordinary people.
Under the Constitution, English is the language of the High Courts and the Supreme Court. However, through Article 348 (2) of the Constitution, the governor of a state, with the consent of the President, can allow the use of the local language in the High Court. So far, Rajasthan, Uttar Pradesh, Madhya Pradesh and Bihar have taken this route to do use Hindi in their High Court proceedings.
But to be truly effective, experts say, any reform in the courts should start from the bottom. It is the district and High Courts where the need for communication in the local language is greatest, they note.
There are also doubts about how effective the Supreme Court’s translation project will be. For instance, many of the legal terms are in Latin and may have no equivalent in Indian languages. Will the Supreme Court issue a list of standard terms before going ahead with the project? Though the media reported that a translation software has been developed to implement the project, it still unclear how dependable this software will prove.
From bottom up
While there’s no denying that the Supreme Court’s decision is a positive step, it’s clear that these translations will be of greater use to lawyers than to litigants. That is because when the Supreme Court delivers a judgement, it means that the case has attained finality: there are very few options left for the litigants to challenge these decisions.
But if the lower courts and the High Courts were to function in local languages, this would help litigants understand their case when there is actually room for significant interventions.
To illustrate this, lawyer Isha Khandelwal, one of the founders of the Jagdalpur Legal Aid Group that functions out of Bastar, described how residents of Chhattisgarh are baffled by a legal system that mainly functions in Hindi instead of their local language – either Chhattisgarhi or Gondi, depending on the region. Bastar has a heavy Maoist presence and Adivasis are often caught in the crossfire between the state and the insurgent group.
“People did not even know what case they were booked for,” Khandelwal said. “The accused are often at the mercy of the lawyers and do not understand anything about the case.” This is especially problematic in this region, where there is fear of lawyers colluding with the police to frame innocent Adivasis in Maoist-related cases.
Even in states where the regional language is used in the local courts, the effort is undermined by the perception that English is the language in which the legal profession must be conducted.
Tamil Nadu example
In Tamil Nadu, for instance, the government amended the law in 1976 to make Tamil compulsory in the lower courts. But the bulk of proceedings continue in English because many lawyers believe that their clients will not trust them if they fail to use the language. This is especially true in Chennai, the capital of Tamil Nadu where many civil courts function in the High Court premises.
The High Court has contributed to undermining Tamil in the local courts. As per Section 4 B of the Tamil Nadu Official Languages Act, Tamil was made the language of the courts subordinate to the High Court. They were expected to write judgements and orders in Tamil. But the law allowed for the High Court to exempted judicial officers from this rule under certain circumstances.
In 1994, a resolution of the full court of the Madras High Court allowed subordinate judges to use either English or Tamil in their judgements and orders. This resolution, which the registrar of the High Court communicated to the subordinate judges through an office memorandum, was challenged. In 2013, the High Court dismissed this petition. But a division bench in 2014 allowed the review of this judgement, stating that the court had not properly considered certain aspects of the law. However, the Supreme Court stayed this review order in 2014 and case has been pending ever since.
High Courts and local languages
For decades, lawyers in Tamil Nadu have been urging the judiciary to make Tamil the language of the Madras High Court. In 2006, when M Karunanidhi of the Dravida Munnetra Kazhagam became the chief minister, the state government recommended the use of Tamil in the High Court.
K Chandru, former judge of the Madras High Court, said when the proposal to make Tamil the language of the Madras High Court was sent to the Centre, it sought the view of the Supreme Court, which rejected the proposal. One of the reasons was that the chief justice of all High Courts are from outside the state and would not be likely to understand the local language. The Supreme Court had shot down similar proposals in 1997 as well.
“If the Supreme Court is really interested in improving access, it should allow the use of the local language in High Courts,” said Chandru.
The exclusive use of English in High Courts creates a deep disparity among lawyers who can speak English fluently and those who cannot. “A person may know the law well but may still struggle in the High Court due to lack of fluent English,” Chandru noted
The market for lawyer fluent in English is also far bigger. For example, legal luminaries Mukul Rohatgi and Harish Salve can argue in any High Court in India, given their command over English. However, a lawyer in Telangana who knows the law well but can only speak in Telugu will be restricted to the Telugu states.
This means the odds are stacked against lawyers who hail from semi-urban and rural areas. S Raju, a lawyer from Chennai who had gone on hunger strikes several times to demand the use of Tamil in courts, said class and caste play vital role in access to education – and in turn access to English. “I would say lawyers who cannot speak English properly are almost like daily labourers who do not earn much,” he said.
The lawyer said English-speaking lawyers are always taken more seriously. “Walk into any court and see for yourself.”