The Brahminisation of justice or why our English-only Supreme Court needs a taste of linguistic democracy

The privilege that English enjoys in the Supreme Court needs to be diluted in order to make its portals accessible to those who speak languages different from the clipped and accented English of foreign-educated but exorbitantly expensive lawyers

Ajay Singh November 16, 2018 09:18:55 IST
The Brahminisation of justice or why our English-only Supreme Court needs a taste of linguistic democracy

"You are a judge and you can't speak in English? You may hold court in Hindi, write your judgments in Hindi but once you come to SC you must speak in English."
— Chief Justice of India Ranjan Gogoi to an Additional Judge who was arguing his case in Hindi

Tahir Abbas, a journalist colleague, had a delectable anecdote about his father. The latter once attended a meeting addressed by Muhammad Ali Jinnah in Lucknow before Partition. He returned quite dismayed at the great leader’s anglophile conduct. But the maulvis who attended the conference were quite impressed because, they all agreed, “Mian, Angrez bhi aisi Angrezi nahi bol paate (even Englishmen can't match his English-speaking skills)."

Jinnah’s linguistic skills, though largely incomprehensible for his target audience, endeared him to the clergy and the masses, revealing that the influence of English is far more pervasive and overweening than we are conscious of or ready to acknowledge.

The Brahminisation of justice or why our Englishonly Supreme Court needs a taste of linguistic democracy

File image of the Supreme Court of India. Reuters

That persists even today, and disconcertingly, is practised with complete constitutional sanction by the Supreme Court of India.

That is why Chief Justice of India Ranjan Gogoi’s above-mentioned reprimand of an additional judge does not come as a surprise. The details of the incident are not as relevant as the larger issue it exposed, the issue of the language of the law.

It was, of course, not the first time the choice of language in conducting the business of the apex court made news. Maverick politician, Raj Narain, wanted to intervene in a case relating to socialist leader Madhu Limaye, but the judges of the Supreme Court objected to his usage of Hindi, and his intervention was cancelled.

Of course, the law is on the side of Chief Justice Gogoi. English is the officially the lingua franca of the Supreme Court. This stems from the Constitution. Article 348 (about “Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.”) states that “(a) all proceedings in the Supreme Court and in every High Court... shall be in the English language.” This reflected the challenges, at the time of the Constituent Assembly debates, of building a nation in a multilingual setting.

The constitution, however, has been amended several times over but this colonial hangover has survived unchallenged. Many high courts have officially switched to the regional language of the state after seeking assent of the President.

The issue is not that this language-apartheid entered the Constitution. The issue is that it has stayed there for seventy years without as much as a murmur for linguistic democratisation of the apex court to keep in step with the evolution of the country.

The other two pillars of our democracy — the legislature and the executive — which were allowed to practice similar language discrimination, have requited themselves in this matter. Though Article 348 also mandates the use of English language for "the authoritative texts", all bills/Acts of the central and state legislatures, as well as ordinances, legislatures not only conduct business in a variety of tongues even the bills and Acts of the Parliament are published in English as well as Hindi (and other languages).

If the Parliament or state legislatures had retained those features and insisted on the primacy of English as the Supreme Court has — willy-nilly putting a premium on the erudition of language rather than of the law — India’s transition from Nehru to Lal Bahadur Shastri would not have been possible. The legacy of the Raj was so overpowering for decades that it was difficult for the institutions of State to shed them in a hurry. Yet the democratisation of the polity ensured that the Indian legislature and the bureaucracy gradually transformed into multilingual entities in consonance with the features of the Indian society.

But the highest judiciary assiduously insulated itself from the process. This splendid isolation from the rest of the institutions of the state is often justified on the assumption that the knowledge of law and its complexities flows from one’s ability to understand or speak English in the court. This and other such assumptions form the basis of the 216th report of the Law Commission, in 2008, whose very title is: ‘Non-feasibility of introduction of Hindi as compulsory language in the Supreme Court of India.'

The Committee of Parliament on Official Language had then proposed to amend Article 348 and dilute the English-only mandate. A reference was made to the Law Commission which sought opinions of retired chief justices and judges of the Supreme Court, senior advocates and bar associations in different states. Based on the views of the fraternity, the panel recommended against introducing Hindi in the apex court.

Among other things, the Law Commission report stated:

"At any rate no language should be thrust upon the judges of the higher judiciary and they should be left free to deliver their judgments in the language they prefer. It is important to remember that every citizen, every court has the right to understand the law laid down finally by the apex court and at present one should appreciate that such a language is only 'English'.”

Ground reality, on the other hand, could not have been more contrary to this Macaulay-inspired position. Acknowledging every citizen’s right to understand the law laid down by the apex court is a praiseworthy sentiment, but English would be the most inappropriate choice for the purpose. According to the 2001 census, India had only 2,26,449 people, or 0.02 percent of the total population, who reported English as their first language. Adding even those who claimed English as second language and also those who said it was their ‘third language’, the total still comes to barely 12.18 percent. Whereas Hindi, for example, covers 53.16 percent of the population considering all three types of speakers. Indeed, Hindi has the third highest number of speakers in the world (after Mandarin Chinese and English) but will remain sidelined at home. Of course, this is not to make a case for Hindi, in particular, but for Indian languages, in general.

Yet, the myth of the necessity of English in the higher judiciary is deliberately perpetuated. This has made the higher courts the exclusive domain of a privileged few who speak in a language incomprehensible to the masses, just like what Sanskrit did to Hinduism. Hindu rituals are conducted in Sanskrit and only the professional pandits can perform the rituals. Their clients have no clue of what business is being conducted on their behalf. Similarly, English has Brahminised the higher judiciary.

Unlike in religious matters, the language bar in courts comes with consequences. Firstly, it has raised the cost of justice so high that the higher judiciary is nearly inaccessible even for a reasonably rich person, let alone the common person. Secondly, the restricted pool of resources — judges and lawyers who can converse in Queen’s English — has led to a gargantuan pendency of cases, delaying and thus denying justice in a plethora of cases.

Remember the plight of a former secretary of the government of India, HC Gupta, who preferred to go to jail rather than pay to hire a lawyer in his protracted battle against corruption charges levelled by the CBI. His lament was simple: “I cannot pay the lawyers; so send me to the jail and let me avoid ignominy of going through this process.” Gupta was known to be a bureaucrat of integrity till the Supreme Court-mandated inquiry by the CBI implicated him in the coal scam.

Gupta’s plight is not an isolated case. Except for big corporate houses, bureaucrats with dubious credentials or politically high-profile cases, the exalted portals of the Supreme Court are prohibitively expensive to enter.

Contrast this with the evolution of the legislature and the executive, and you would know the difference. In the early years of the republic, the elites in the Parliament and the executive found it easier to converse in English than any Indian language. But over the years Hindi and other regional languages contended for that space and enriched the debates by dipping into the wisdom of members who spoke Indian languages.

This linguistic democratisation of the polity and legislatures paved the way for the evolution of powerful regional satraps and transformed Indian politics. Leaders like Raj Narain, Chandrashekhar, HD Deve Gowda, Atal Bihari Vajpayee, Narendra Modi, Nitish Kumar, Mulayam Singh, Lalu Prasad, Mayawati, NT Rama Rao, M Karunanidhi to name just a few, are stark examples before us. Similarly, the character of the bureaucracy has undergone complete transformation ever since candidates appearing for the civil services exams were allowed to take the test in regional languages.

The rise of the subaltern in the legislature and the executive is frowned upon by the traditional elites. That is why leaders who cannot speak English fluently like say Shashi Tharoor or Mani Shankar Aiyar are often mocked. But that hardly affects their politics. These grassroots leaders never vied for any endorsement from India’s anglophile class to establish their political credentials. Ironically enough, Naveen Patnaik who belonged this elite class successfully de-classed himself (to borrow a Marxist terminology) to establish himself in Odisha politics. Similarly, there are few bureaucrats in the capital whose eloquence in English is not the attribute for being successful.

But the higher judiciary has remained insulated from the rise of the subaltern. It has also resisted reservation in judges’ appointment on the basis of social backwardness, a thesis which it endorsed for the bureaucracy. This is why the law ministry has often broached the issue of inadequate representation of women and various sections of the society in the high courts and the Supreme Court. Similarly, the Right to Information (RTI) Act which is applicable to all institutions of the state is quite restricted when it relates to the higher judiciary. In essence, India’s higher judiciary fits into a classical definition of “othering” the other institutions of the state like the legislature and the executive in “such a way as to reinforce and protect self”.

The privilege that English enjoys in the higher judiciary needs to be diluted in order to make its portals accessible to those who speak languages different from the clipped and accented English of foreign-educated but exorbitantly expensive lawyers. The rise of the vernacular in the higher echelons of the judiciary is not only long overdue but also imminent. As only a constitutional amendment can launch the process of change, a renewed debate on the linguistic question — between the legal fraternity and the rest — is the need of the hour.

A version of this article appears in the latest issue of Governance Now

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