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Prabhandhak Samiti and anr. Vs. Zila Vidyalaya Nirikshak, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2639 of 1976
Judge
Reported inAIR1977All164
ActsConstitution of India - Article 348(2)
AppellantPrabhandhak Samiti and anr.
RespondentZila Vidyalaya Nirikshak, Allahabad and ors.
Appellant AdvocateS.N. Kacker, ;A.C. Srivastava, ;G.C. Dwivedi and ;R. Dwivedi, Advs.
Respondent AdvocateStanding Counsel and ;M.B. Lal, Adv.
Excerpt:
.....not completely demolished. by a similar order made in 1966 the governor had permitted the use of hindi language for the purpose of arguments in civil cases as well. ' the above order clearly permits the use of hindi in deo nagri script in the affidavits filed in the high court and in the statements and documents to be included in the paper books prepared for use in the proceedings of that court. the object of the notification dated 5th september, 1969 is clearly stated in its preamble and furnishes a clue to the interpretation of the main provision contained in paragraph 4 thereof. it must be presumed that these things can also be filed in hindi, otherwise the policy clearly disclosed in the preamble of the order and consistently followed by the governor since 1947 would be defeated...........that 'english is the language of the constitution, the language of many of the lower courts, the high courts and the supreme court, the only authoritative language of the legislature and the only language in administrative, judicial, and educational spheres.' on the other hand, the protagonists of the divine sanskrit and its beauteous daughter hindi declare that hindi is the language in which their prophets, bards and writers have unravelled the mysteries of the earth and heaven and taught them to scorn the fleeting objections of the senses and grow into that spiritual oneness which is the divine life. for them hindi is the language in which meera bai sang her ecstatic songs, tulsi and surdas invoked their blessed masters and jaishanker prasad wove his immortal fantasies. the issue,.....
Judgment:

M.N. Shukla, J.

1. A preliminary point has arisen in this case as to whether a writ petition drafted in Hindi in Deo Nagri script and presented in this Court can be entertained and adjudicated upon. The present writ petition was drafted in Hindi, so also the accompanying affidavit and the rejoinder affidavit and the petitioner insists on the writ petition being heard and decided as it stands. Since it is a question of law of general importance, we propose to decide the same and we cannot refrain from observing that we received valuable assistance on this point from Sri S. N. Kacker, who appeared for the petitioner and who entered, if we may say so, a vigorous defence in favour of Hindi.

2. The transition from one official Court language to another whether it be under the impact of political freedom or the efflorescence of nationalist sentiment or both, is often preceded by grave misgivings, apprehensions, and even open or veiled hostility. The traditionalists feel aggrieved by what they regard as an invasion into entrenched territory. The reformers, on the other hand, are intolerant of what they are prone to regard as the tyranny of a foreign language. They are only too eager to hail the dawn of a new linguistic era. The history of the world bears witness to this precarious phenomenon of one Court language being replaced by another. The battle for supremacy of the English language in England was waged for nearly five centuries. The Saxon invaders of England obliterated nearly every trace of the Roman occupation but though their language triumphed at first, it was eventually affected in the profoundest way by Latin influences. When the French nation actually came into existence among the ruins of the Roman civilization in Gaul, a new language, viz., the French, was at the same time slowly evolved, but the genius of the French language was descended from the Latin stock. Nearly every word in the French vocabulary came straight from Latin. Little wonder, therefore, that the law Courts in England were for several centuries dominated by the Latin and French languages. The 'Common Law' of England Administered by the royal Court was in form chiefly a French law. French was the language of the Norman and Angevin sovereigns and their courtiers, and French continued to be the language of the common law courts long after it had ceased to be the language of the upper classes. The written records of the Common Law Courts were kept in Latin but the oral pleadings were in French. English supplanted French as the language of the ruling classes in the later fourteenth century, but French continued to be used in legal literature until the seventeenth century. (See 'The English Legal System' by Radcliffe and Cross, (Third Edition) page 15).

3. Latin was the legal language of the twelfth and thirteenth centuries. It was, therefore, the official language of such branches of the Curia Regis as the Chancery and the courts of Common Law which had begun to keep the plea Rolls at this period. In the thirteenth century learned clerks may have thought and spoken in Latin; ordinary persons of the upper classes thought and spoke in French, while the lower classes spoke in various dialects of English. But the common law was the law made by the king's courts. It was the law originally of the upper classes; and even when it had become the law of all classes, it was still administered by the upper classes. Therefore, although the formal records of these courts were drawn up in Latin, the cases were pleaded, shewed, and judged' in French. Naturally the law books and the reports which lawyers made for themselves or for one another were in the same language. The Latin of Bracton gave place to the French of Britton, 'A History of English Law', by W.S. Holdsworth, Vol. II, Third Edition, page 479. In the 14th century an Act was passed superseding French for ordinary purposes, but for legal purposes the language remained French. As early as 1362 there was a famous statute which enacted that pleas should be pleaded in English and not in French, though the records were to be maintained in Latin. But so firm was the hegemony of French that the statute of 1362 failed to achieve the purpose for which it was passed. The reasons were twofold. Firstly, the task of adjudicating of law had fallen on a class of professional lawyers who, as Fortescue pointed out 'could not plead or judge or read their books or reports in anything but French'. Secondly, the technical terms were nearly all in French. 'So many ancient terms and words' said Coke, 'drawn from the legal French are grown to be vacabula artis... ... ... ...so apt and significant to express the true sense of the law, and are so woven in the laws themselves, as it is in a manner impossible to change them, neither ought legal terms to be changed'. To Roger North, who died in 1734, it seemed, as it seemed of Fortescue and Coke, that the rules of English law were 'scarcely expressible properly in English' and that 'a man may be a wrangler, but never a lawyer without a knowledge of the authentic books of the law in their genuine language'. When we proceed to deal specifically with the problem as it has arisen in our country, it will become apparent that the situation in India is almost identical and the remarks of the English lawyers and jurists quoted above can be adopted verbatim to express the reactions of those Indians in whom the habit of using English has become so ingrained that they feel greatly perturbed over the prospect of a change over to Hindi for purposes of the court work.

4. But the language of the people ultimately replaced the language of the upper class even in the law courts of England. The language which had entered into the life of the British people was English and none could resist it entirely. Law, as Maitland has said, is the point where life and logic meet. Therefore, French had at last to give way to English in spite of the former's superiority in the qualities of precision and richness of technical terms. Ultimately by the Act of 1731, which was passed in the period of the complete supremacy of Walpole, the use of Latin in the law courts was abolished in England,

5. In India we are witnessing a somewhat similar spectacle. The traditionalists contend that 'English has today become a part of the warp and woof of Indian thought and language and of the culture of a considerable number of Indians'. A member of the Parliament recently stated that 'English is the language of the Constitution, the language of many of the lower Courts, the High Courts and the Supreme Court, the only authoritative language of the Legislature and the only language in administrative, judicial, and educational spheres.' On the other hand, the protagonists of the divine Sanskrit and its beauteous daughter Hindi declare that Hindi is the language in which their prophets, bards and writers have unravelled the mysteries of the earth and heaven and taught them to scorn the fleeting objections of the senses and grow into that spiritual oneness which is the Divine Life. For them Hindi is the language in which Meera Bai sang her ecstatic songs, Tulsi and Surdas invoked their blessed Masters and Jaishanker Prasad wove his immortal fantasies. The issue, however, must be decided on a rational basis, on objective factors, shorn of the subjective element or the personal inconvenience inevitable in a process of radical change. For a generation accustomed to the use of an exotic tongue like English, though with little pretension to proficiency therein, the adoption of Hindi must appear irksome and involving great difficulty of mental readjustment. But that is no answer to the arguments advanced on behalf of Hindi. Mahatma Gandhi stated the truth thus: 'Our masters chose the wrong way for us and have made the wrong appear as right'.

6. It cannot be doubted that the proceedings of the Courts functioning for the benefit of the inhabitants of any place must on principle be conducted in a language understood by them. It does not appear to be sufficiently realised that the employment of an indigenous language is essential for maintaining the democratic character of the Courts. They can be linked with the people only by using their language; it is a necessary democratic feature of the Courts and one of the foundations of socialist justice. Even Communist thinkers like Lenin attached great importance to the democratic form of the functioning of the Courts. Lenin said that:

'Courts will be able to ensure, through democratic form conforming to the principles of the Soviet system, that aspirations for discipline and self-discipline do not remain vain aspirations ... ...... ... ...' (V. I. Lenin 'Collected Works' Vol. 27, p. 218).

Mahatma Gandhi downright rejected the slavish adoption of a foreign language. He said:

'I must not be understood to decry English or its noble literature. The columns of the Harijan are sufficient evidence of my love of English. But the nobility of its literature cannot avail the Indian nation any more than the temperate climate or the scenery of England can avail her. India has to flourish in her own climate and scenery and her own literature, even though all the three may be inferior to the English climate, scenery and literature. We and our children must build on our own heritage. If we borrow another, we improverish our own. We can never grow on foreign victuals. ('Life and Thoughts of Mahatma Gandhi' edited by Krishna Kriplani, page 154.)

7. Hindi is undoubtedly the most widely understood language in India. It is spoken by about eight crores of people inhabiting the State of Uttar Pradesh alone, besides those residing in the States of Bihar, Rajasthan, Haryana and a major part of Madhya Pradesh. A survey of the various steps taken in the realm of law would reveal that now there are no legal hurdles to the use of Hindi as the language of the High Court and other Courts in the State of Uttar Pradesh. The matter may be examined in the context of the various provisions of the Constitution under three heads;

(a) What is the official language of the Union?

(b) What is the official language of the State and

(c) What is the language to be used in the High Courts?

Article 343 of the Constitution declares that the official language of the Union shall be Hindi in Devanagri Script It appears that the framers of the Constitution were alive to the difficulty of an abrupt change-over to Hindi and therefore they provided the following safeguards in Article 343:

'(2) Notwithstanding anything in Clause (1), for a period of fifteen years from the commencement of this Constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement:

Provided that the President may, during the said period, by order authorise the use of the Hindi language in addition to the English language and of the Devanagri form of numerals in addition to the international form of Indian numerals for any of the official purposes of the Union.'

8. At the same time the Constitution makers were very clear that the time spent in achieving this target with respect to the official language of the Union should not hold up or delay the evolution and development of the regional languages of the States. Therefore, separate provisions were incorporated in the Constitution with regard to the official language or languages of the States. Accordingly, Article 345 of the Constitution provided :

'Subject to the provisions of Articles 346 and 347, the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of that State:

Provided that, until the Legislature of the State otherwise provides by law, the English language shall continue to be used for those official purposes within the State for which it was being used immediately before the commencement of the Constitution.'

9. The first landmark in this direction was the Uttar Pradesh official Language Act, 1951 (U. P. Act XXVI of 1951) which provided that Hindi in Devnagri script shall, with effect from such date within One year from the commencement of this Act, as the State Government may, by notification in the official Gazette, appoint in this behalf, be the language used in respect of all or any of the official purposes of the State. The relevant notification No. U.O. 718/XVII was made on the 30th October, 1952 and published in the U. P. Gazette Extraordinary of that very date. That notification appointed November 1, 1952 as the date with effect from which Hindi in Devanagari script shall be the language used in respect of the following:

(I) Ordinances promulgated under Article 213 of the Constitution of India; and

(II) Orders, rules, regulation and bye-laws issued by the Government of Uttar Pradesh under the Constitution of India or under any law made by Parliament or the Legislature of the State.

This was obviously a piecemeal measure and therefore it was followed by the U. P. official Language Supplementary Provision Act, 1968. Section 2 of U. P. Act XXVI of 1951 was amended and the words 'within one year from the commencement of this Act' were omitted and a proviso was added to the effect that the State Government may by general or special order in this behalf permit 'the use of the international form of Indian numerals for any official purpose of the State.' This movement was carried forward by another significant notification to which reference must be made in this context. In exercise of the powers conferred by Section 2 of U. P. Act XXVI of 1951 the Government of Uttar Pradesh issued a notification dated February 19, 1968 which was published in the U. P. Gazette, Part I, dated 24th February, 1968 at page 889. It appointed 26th day of January, 1968 as the date with effect from which Hindi in Dev Nagri script was to be used in respect of all the official purposes of the State not covered by the earlier notification dated 30th October, 1952. This was evidently a comprehensive measure and Hindi became the language for all official purposes of the State with effect from 26th January, 1968. This completed the process of the adoption of Hindi as the official language of the State of Uttar Pradesh as contemplated by Article 345 of the Constitution.

10. Sri S. N. Kacker contended on behalf of the petitioner that the legal effect of the above measures was to make Hindi the language of the Courts in Uttar Pradesh including the High Court. The submission was that Articles 343 and 345 of the Constitution dealt with the official language of the Union and the States and they should, therefore, be regarded as embracing within their scope the language to be employed by the Courts as well for conducting their proceedings. He referred to the scheme envisaged by Parts V and VI of the Constitution. According to him the official purposes of the State or Union included the use of a particular language for the functioning of its Courts. It was submitted that Parts V and VI of the Constitution revealed a distinct pattern, part V consisted of Articles 52 to 151 of the Constitution which contemplated the setting up of the Union Executive, the Union Legislature (Parliament) and the Union Judiciary. Likewise Part VI of the Constitution, which was comprised of Articles 152 to 237, contemplated the creation of three wings of the State, namely, the Executive, the Legislature and the Judiciary composed of the High Court and subordinate Courts. From this it was sought to be inferred that the expression 'official purposes' used in Articles 343 and 345 included within its connotation the functioning of the Executive, the Legislature and Judiciary in the scheme of the Constitution. 'official purposes' of the State should normally according to the petitioner, include judicial functions of the State which would naturally cover the question as to the language to be employed for the purposes of the Courts. The argument was put in another form and it was submitted that when a petitioner invoked the jurisdiction of a Court and wanted the machinery of the State to be set in motion for the redress of his grievance, he was entitled to do so by employing the language used for the official purposes of the State, and if he chose to write out his grievance in such official language, there was no breach of the Constitution. In our opinion the three functions of the State are no doubt complementary and dispensation of justice is one of the fundamental official acts of the State but when there is a specific provision in the Constitution dealing with the functioning of the judiciary, that provision alone would govern the decision of the question as to what should legally be the language for the use of the Courts. Article 348 opens with the words 'Notwithstanding anything in the foregoing provisions of this Part,' which indicates that this is the specific provision in the Constitution relating to the language to be used in all proceedings in the Supreme Court and the High Courts. We, therefore, reject the argument of Sri Kacker in support of Hindi as the Court language in so far as it rests on Articles 343 and 345. The question as to which language can be employed for the use of the Courts must ultimately be decided on the basis of the provisions of Article 348 and not Articles 343 and 345 of the Constitution. This brings us to the answer of the third question posed by us:

'What is the language to be used in the High Courts ?'

11. Coming to Article 348 it is clear from its terms that until the Parliament enacts a contrary law the proceedings in the Supreme Court and the High Court are enjoined to be in the English language. It says:

'348 (1) Notwithstanding anything in the foregoing provisions of this part, until Parliament by law otherwise provides--

(a) all proceedings in the Supreme Court and in every High Court.

(b) the authoritative texts--

(i) of all Bills to be introduced or amendments thereto be moved in either House of Parliament or in the House or either House of the Legislature of a State.

(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State and

(iii) of all orders, rules, regulations and bye-laws issued under the Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.'

But the most significant provision is contained in Clause (2) of Article 348 by which the framers of the Constitution, it appears clearly contemplated the gradual adoption of Hindi or any other language used for any official purposes of the State, in proceedings in the High Court Article 348(2) reads as follows:

'(2) Notwithstanding anything in Sub-clause (a) of Clause (i) the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State :

Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.'

12. The progress of Hindi in its march towards the goal of becoming the language of the Courts in the State of Utter Pradesh synchronises with the various steps taken in pursuance of Article 348(2). It may be noticed that whereas Clause (1) of Article 348 contemplates some law to be enacted by the Parliament, Clause (2) of the same Article achieves its object through the instrumentality of orders issued by the Governor of the State. The proviso to that clause is to the effect, that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court. In other words, barring the items mentioned in the proviso, the use of Hindi language in proceedings in the High Court can be authorised by means of an order passed by the Government of the State concerned under Article 348(2). This provision vividly reflects the foresight and policy of the framers of the Constitution which was not to let the use of Hindi in the law Courts in the States be delayed or deferred until Parliament by law provided that all proceedings in the High Courts should be in Hindi or any other official language of the State. Thus, the intention of an expeditious substitution of Hindi for the English language for use in all proceedings in the High Court in the State of Uttar Pradesh can be clearly culled from the provisions of Article 348(2).

13. We shall now briefly refer to the salient measures taken within the ambit of Article 348 in this context. In 1963 the Parliament of India passed the official Languages Act, 1963 (No. XIX of 1963) enabling by its Section 7, the use of Hindi or other official language of the State in the High Court of the State in its judgments, decrees and orders, provided the Government of the State concerned, with the previous consent of the President of India, issued a notification to that effect. This was a major step in the endeavour to get over the hurdle created by the proviso to Clause (2) of Article 348. Two important features of Section 7 are however, noteworthy. In the first place, it provides that where any judgment, decree or order is passed or made by the High Court in a language other than English, it shall be accompanied by a translation of the same in the English language issued under the authority of the High Court. Secondly, Section 7 of the official Languages Act was not brought into force forthwith and it was left to the Union Government to fix by a notification an appointed date on which that section was to come into force. So by a notification of the Home Ministry (No. 2/1/66-O.L., dated 26th February, 1970) the Union Government fixed the seventh day of March, 1970 as the appointed date for the purpose of Section 7 of the official Languages Act, 1963. Thus, after the 7th March, 1970 the Governor of a State was empowered with the previous consent of the President of India, to permit the use of Hindi in addition to English in the High Court of the State concerned in its judgments, decrees and orders. To further promote its progress the Governor of Uttar Pradesh after consulting the High Court of Allahabad by a notification dated 28th October, 1970, in exercise of the power under Section 7 of the official Languages Act, 1963, with the previous consent of the President, authorised the use of Hindi in addition to the English language for the purposes of any judgment, decree or order passed or made by the High Court of Allahabad, It, however, provided that when any judgment was passed or made in Hindi it was to be accompanied by a translation of the same in the English language issued under the authority of the High Court. So the present position is that a Judge of the High Court of Allahabad is free to pass or make his judgments, decrees and orders in Hindi but it has to be accompanied by a translation of the same in the English language issued under the authority of the High Court. In this manner the inhibition imposed by the proviso to Clause (2) of Article 348 has been substantially overcome but not completely demolished.

14. We have so far been dealing only with the judgments, decrees or orders of the High Court. We now proceed to examine the important steps which were taken with regard to the use of Hindi for purposes of conducting the proceedings in the High Court in the State of Uttar Pradesh. It will be noticed in this connection that under the scheme of the Constitution the provisions of Article 348(2) are to prevail over those of Article 348(1). This is clear from the non obstante clause with which Article 348(2) opens. It is thus made possible to permit the use of Hindi language for proceedings in the High Court by an appropriate order of the Governor of the State under Article 348(2) despite the provisions of Article 348(1). Accordingly by a notification made under Article 348(2) in the year 1961 the Governor of Uttar Pradesh permitted the use of Hindi language for purposes of arguments in criminal cases. By a similar order made in 1966 the Governor had permitted the use of Hindi language for the purpose of arguments in civil cases as well. But the most notable step in this direction was the order dated 5th September, 1969 issued by the Governor of U. P. ,with the previous consent of the President under Article 348(2). The crucial provision of the order is contained in paragraph 4 thereof which is reproduced below:

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