This article is a policy analysis of The Haryana Official Language (Amendment) Bill, 2020, wherein the authors examine the constitutionality of the amendment and the practical implications of the same.
Introduction: What the Amendment Says
The Haryana government caused a bit of stir by introducing the Haryana Official Language (Amendment) Act, 2020. This legislation introduced an amendment to the Haryana Official Languages Act, 1969 by inserting Section 3-A into it. Section 3-A(1) mandated Hindi to be the language in which all courts in Haryana, subordinate to the Punjab and Haryana High Court, would conduct and record their proceedings. Section 3-A(2) directed the state government to provide the necessary training of staff and infrastructure to effect this change, within 6 months of the commencement of the amendment. Language has always been a sensitive issue in India in every state. Haryana itself was carved out from the state of Punjab on a linguistic basis. It was obvious that such legislation would not be passed quietly and indeed there was stiff opposition. It is important not to be reactionary while assessing a statute. To truly understand the nature of Section 3-A and its consequences, it is important to properly analyse the provision and its implications. It can then be understood which criticisms of the Act have merit to them and which are the product of the mere reaction. It would be wrong to say that the Act has no positives and was introduced with malicious intentions. However, in spite of the official language of Haryana being Hindi, the amendment is still a gamble which has more disadvantages than advantages.
To begin with, there is nothing prima facie unconstitutional about the law itself. A writ petition was submitted to the Supreme Court by Advocate Sameer Jain i.e. Sameer Jain v. State of Haryana, wherein it was alleged that Section 3-A imposed an arbitrary qualification on advocates to be fluent in Hindi. Hence, it was violative of Article 19(1)(g) which gives a citizen the freedom to practice any occupation and in this case the right to practice as an advocate, and Article 14 which guarantees a person equality before the law. The Supreme Court rejected this petition giving an example of how even during the British times, courts used to record evidence in the vernacular language and that there was no violation of fundamental rights. The state government does have the power to prescribe a language of working for courts subordinate to the state High Court according to Section 272 of the Criminal Procedure Code, 1973 and Section 137(2) of the Civil Procedure Code, 1908. This was the contention put forward by the state. Furthermore, Section 3 of the Haryana Official Language Act, 1969 stated that the official language of Haryana is Hindi, and the reason is that a majority of the citizens of the state speak Hindi as a mother tongue. The intention of the Centre is to help the common people understand the workings of the judiciary.
This being said, it cannot be ignored that Article 348(1) lays down that the language for proceedings of High Courts and the Supreme Court and the statutes is English. Article 348(2) does authorise the state via the governor, with the approval of the president, to adopt an official language as the language of the High Court. Uttar Pradesh, Bihar, Rajasthan, and Madhya Pradesh all use Hindi alongside English at High Courts. However Patna High Court itself in Krishna Yadav v. State of Bihar held that writ petitions could be submitted in Hindi with authentic English translations and said, “even though the propagation of Hindi as a National language has seen a growth and adoption in the official work of the Union as well as a large number of the States, but so far as the judiciary is concerned, the use of the English language in all the High Courts of the Country as well as the Supreme Court continues to be English. The wide availability of legal expressions in the English language has not yet been perfectly substituted in any other regional language including Hindi.” The parliament itself works in Hindi and English, both of which are official languages in India at the national level. Chapter I provision 2 of the Supreme Court’s Handbook on Practice and Procedure and Office Procedure itself dedicates English to be the language of all proceedings of the apex court as per Article 348 read with Order VII of the Rules.
The Legal and Practical Implications of The Amendment
The above information about English being the language of the High Court and the Apex court is relevant because a lot of cases heard in subordinate courts eventually make their way to the state High Court and the Supreme Court. English has inextricably been a major part of the Indian judiciary. The one argument in Advocate Sameer Jain’s writ petition is that Section 3-A is exclusionary in nature. The validity of this argument cannot be brushed aside. It is true that local languages should take precedence but this should not be to the exclusion of English. Section 3-A mandates Hindi as the language of subordinate courts. The point is not to discourage the use of Hindi in courts but to not promote it at the expense of English. To expect every advocate appearing before a trial court or tribunal in Haryana to fluently argue in Hindi without even the option of English may not only turn out to be a curse for litigants in Haryana but can also cram the judiciary. Mandating judicial officers and judicial staff to write only in Hindi might very well have an impact on the quality of the judgement. Increasingly, many law students look to take up judicial clerkships because of how good an opportunity it can be. Many students come from non-Hindi speaking backgrounds and may not be fluent enough in Hindi. A mandatory Hindi policy will not only discourage fresh graduates from wanting to work in Haryana but will also act as a burden for those working as part of the judicial staff. This will no doubt impact the quality of the working of the judiciary.
Within Haryana, 15% of the population speaks English according to the 2011 Census. These people are likely to be living in the cities of Gurgaon and Faridabad which are becoming cosmopolitan due to the urbanisation of these areas. Hence, for those people not from Haryana or the Hindi belt regions looking to migrate to Gurgaon (or the children from migrant parents), to become advocates will find it very difficult to build a good career if not fluent to converse in Hindi.
In Haryana itself, if one visits a trial court in Sonipat for instance, most of the proceedings do go on in Hindi. For examination of witnesses, questions are usually asked in Hindi. Thus, it is not as if Hindi was legally restricted prior to Section 3-A. But the problem comes when a case in a trial court goes into an appeal to the Punjab & Haryana High Court and the Supreme Court where English is the prevailing language. For this, documents will need to be translated into English. This will be accompanied by significant costs which will be borne by the advocate and in turn by the client. Hence Section 3-A can even cause disadvantages to the very section of the population that the state wished to help. The 216th Report of the Law Commission has already detailed how introducing Hindi in the apex court is not feasible. This non-feasibility will apply top-down. If every state conducted judicial proceedings in their regional languages and cases go to appeal to the Supreme Court, it will be a living nightmare for judges who come from all over India and have only English as a common language. By excluding English completely from the district courts, an artificial language-based classification between courts and legal professionals will be created based on their place of practice. This does not bode well for the system. Hence, Haryana mandating proceedings to be conducted in Hindi for subordinate courts is exclusionary towards many sections of the state population.
There are various ways to encourage the use of Hindi in the courts without excluding other official languages. Article 348(2) gives the power to the governor of Haryana and Punjab, with Presidential approval, to declare Hindi to be introduced in the Punjab and Haryana High Court. Section 363 of the CrPC allows the accused to have a translated copy of the judgement. The working language of the lower courts of Haryana is Hindi. Thus, the state government can promote Hindi in lower courts alongside English and there is no need to exclude one for the other.
The use of Hindi as a language of the court ought to be encouraged, however, it would only be beneficial for the Courts in Haryana if they are inclusive in their conduct. The mandatory nature of the Amendment is also not in accordance with the growth of commercialisation in the state. As the state attempts to be more welcoming and inclusive towards domestic and foreign firms and investments belonging to different industries, such an amendment is exclusionary for many, who currently rely on other official languages to conduct their commercial and legal transactions. The imposition of only one language as the official language of the court may act as a hindrance to all those who need to approach the court. The amendment further places many aggrieved individuals and practitioners who may approach the court and be well-versed in Hindi, at risk as their practice may be restricted before the courts in Haryana.
Even the use of Hindi as an official language in the Courts and Tribunals is not uniform, as there now exists a difference between the official language of the High Court of the state and the Courts and Tribunals, which are subordinate to the High Court of Haryana and Punjab. Such an operational difference between the subordinate Courts and Tribunals and the High Court of the state will only lead to an increase in costs incurred for both the parties and the Court for the translation of documents if there arises a situation where a case is to be appealed before the High Court.
The Amendment to the Haryana Official Languages Act aims to promote the use of the Hindi language in the working of the court, however, it should be seen that such an Amendment may only be restrictive in nature for those who are compelled to appear before the court. It is necessary for the state to adopt an inclusive approach to balance the encouragement of Hindi along with representing Haryana’s diverse linguistic background, in the judiciary. The imposition of Hindi as the only official language of the courts in Haryana is contrary to the same.
This article is authored by Ishan Vijay and Prithvi Sinha who are fifth-year law students at the Jindal Global Law School.