Language as a Divisive Factor in Indian Constitutional Law

 Language serves as a significant divisive factor in India, particularly when examined through the lens of constitutional law. The country is home to a multitude of languages, each associated with distinct cultural identities and regional affiliations. This linguistic diversity can lead to social fragmentation and conflicts, especially in the context of governance, education, and political representation.

The Indian Constitution recognizes the importance of linguistic diversity. It includes provisions that aim to protect and promote various languages, particularly those listed in the Eighth Schedule. However, these provisions can also exacerbate divisions:

Constitutional Provisions and Language

-Article 343 establishes Hindi in the Devanagari script as the official language of the Union. However, it also allows for English to be used for official purposes for a transitional period of 15 years, which was extended due to resistance from non-Hindi-speaking states. This provision reflects an attempt to accommodate linguistic diversity while promoting a common language for administrative purposes.

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Procedure to be followed by court if there is conflict between Hindi and English version of law

"Under Article 345, the Legislature of a State may 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 purpose of the State. This power is subject to Articles 346 and Article 347 of the Constitution of India. It is, apparently, in terms of Article 345 that the Uttar Pradesh Legislature has passed the two laws, which we have adverted to namely, Uttar Pradesh Language (Bills and Acts) Act, 1950 and Uttar Pradesh Official Language Act, 1951. By virtue of these laws, undoubtedly, the State has adopted Hindi as the language for the purpose of enacting laws be they plenary or subordinate legislation, but it is hedged in with the limitation contained in Article 348(3) of the Constitution. Under Article 348(3), it becomes the duty to publish the translation of the law, which is made in the official language other than English. The publication of the translation is to be done under the authority of the Governor of the State in the official gazette of the State. Sub Article (3) of Article 348 further declares unambiguously that it shall be deemed to be the authoritative text of the English language under Article 348. It must be remembered that Article 348(1) provides that the authoritative texts of all Bills and Acts, inter alia, are to be in English language. It is to provide for the contingency where a State adopts any other language as its official language that the founding fathers provided for a translation to be made of the law into English, which is made by the Legislature in a language other than English. This English version is, undoubtedly, to be treated as the authoritative text within the meaning of Sub Article 1 of Article 348 of the Constitution of India."

21. Having thus referred to the various provisions of law, we must consider the effect of any ambiguity, which may exist between the two versions, namely, (i) English language and (ii) any other language, which may be the official language of the State concerned. There can be broadly two situations to our mind. As in the case of Nityanand Sharma (supra) and Prabhat Kumar Sharma (supra), the original version of a law may be published in the English language. It may be followed by the Hindi version of the same. The second possibility is where the law may be made in the official language of the State concerned, as in the case of State of Uttar Pradesh where Hindi is the official language. A law may be made in Hindi language; it must be followed by an English translation within the meaning of Article 348(3), which is to be treated as authoritative text under Article 348(1). In a case where a law is made in English language and a confusion arises on account of the translation found in the Hindi version, quite clearly, dominance would be accorded to the English version. When a law is made, however, in the official language, other than English language as say the Hindi language as in the facts of this case and a discrepancy occurs when the translation takes place, it can give rise to two broad situations again. The first situation would be on account of the inadequacy or ineptitude of the translator, a doubt or ambiguity may be created by virtue of the translation made under Article 348(3) of the Constitution. While, it is true that Article 348(1) declares that the translation published under Article 348(3) will be the authoritative text within the meaning of Article 348(1), as the duty of the Court is to give effect to the intention of the Legislature, every effort must be made to reconcile the differences. An attempt must be made to find out the intention of the law-giver. Both the Hindi version and the English version can be looked into and the Court would be acting within its powers in adopting the version, which best accords with the intention of the Legislature, applying various Rules of interpretation and in particular, the purpose Rule.

22. The second category of cases is those cases, where there is a conflict between the two versions, namely, the Hindi and the English. If there is a conflict between the Hindi version and the English version, it is our view that it is the translation published under Article 348(3), of the law, in English, which would prevail. This view of ours is arrived at by following what has been laid down by not only the Hon'ble Apex Court in Park Leather Industry's case (supra) but also by the seven Judges Bench of the Allahabad High Court in Mata Badal Pandey's case (supra).

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Special Appeal No. 593 of 2017

Decided On: 18.09.2017

Shahjahan Baigam Vs.  District Magistrate Udham Singh Nagar and Ors.

Hon'ble Judges/Coram:

K.M. Joseph, C.J. and Alok Singh, J.

Citation: AIR 2017 Uttar 200

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Whether dying declaration can be relied on if it is not recorded in language of deceased declarant?

On the showing of the prosecution itself, the deceased was an illiterate, coolie with rustic background, it cannot be presumed or assumed that she would have narrated the motive for the incident as above in a sophisticated language which was not familiar to her. Had if the vital portion of the dying declaration, as answered to question No.21 was recorded verbatim in the language of the declarant and was the actual version of her statement, then same could have been acted upon dehors corroboration to record conviction. The sophisticated bookish language employed above raises reasonable doubt, as to whether declarant's mind was translated into writing in its true sense?

12. As per Criminal Rules of Practice in the neighbouring State, the declaration should be taken down in the words of the declarant as far as possible. There is no such corresponding provision in Karnataka Criminal Rules of Practice. However, the rule of wisdom would caution that the declarant's version shall be recorded in the language expressed by him/her.

Karnataka High Court

Chikkanna Shetty vs The State Of Karnataka on 11 October, 2017

Author: Rathnakala And K.S.Mudagal

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Whether dying declaration can be discarded on ground that it was recorded in different language?

In State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675, the

Apex Court took a similar view and held as follows:

“10.         Assuming   that   the   deceased   gave   her

statement   in   her   own   language,   the   dying

declaration would not vitiate merely because it was

recorded in a different language.  We bear in mind

that it is not unusual that courts record evidence in

the   language   of   the   court   even   when   witnesses

depose in their own language.  Judicial officers are

used to the practice of translating the statements

from the language of the parties to the language of

the court.  Such translation process would not upset

either   the   admissibility   of   the   statement   or   its

reliability, unless there are other reasons to doubt

the truth of it.    

The main argument of Shri Bhatia is that Kachrabai (deceased)

was speaking in Chhattisgarhi and, therefore, her statement should13

have been recorded in Chhattisgarhi. It is true that the statement

should be recorded in as close a language as is possible to the

deceased. However, Chhattisgarhi has no script. No question has

been put to the Tahsildar/Magistrate that he did not know

Chhattisgarhi. Chhattisgarhi is quite similar to Hindi and a person who

is working as Naib-Tahsildar/Tahsildar can be presumed to have

knowledge of Chhattisgarhi. The statement had to be recorded in

Devnagari Script. The witness (PW-9, Naib-Tahsildar) has recorded it

in a language which he is more comfortable with him. No suggestion

has been put to him that the witness does not know Chhattisgarhi. In

fact, this witness clearly states that the questions answers were

exchanged in Chhattisgarhi. There is nothing unusual if the statement

was recorded in Hindi. The Apex Court in two judgments, which are

cited above, has held that merely because the dying declaration was

recorded in a different language is not a ground to discard the same.

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1063 of 2002

Dated : 29.9.2016

Suresh Purushottam,

v

State of Chhattisgarh, 

Coram:

 Shri Deepak Gupta, Chief Justice

 Shri Justice P. Sam Koshy

Citation: 2017 CRLJ 91 Chhatis

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Whether execution of will can be doubted on ground that it was executed in different language?

It has always been the Plaintiff’s case that the Testator could
communicate in English, and did so reasonably well. It is nobody’s
case that the Will is fabricated because the Testator could not speak
English. The only case, as I understand it, is that it was exceedingly
odd for him to have done so considering he had written his previous
wills in Gujarati and took great pride in his mother tongue. A very
similar argument was taken before a Division Bench of the Calcutta
High Court in Sanat Kumar Das v Arati Das. (2009) 4 CHN 593 (DB).Here, the testator,

who was educated in English, had signed the Will in Bengali.
Though the caveators in this matter were aware that the testator
knew Bengali, they had not known him to sign in that language
before. The High Court dismissed the submission. It is settled law,
the Division Bench said, that the Probate Court cannot require

proof ‘beyond reasonable doubt’
, nor must the Court proceed on a
presumption that the Will is suspicious. I am in most respectfulagreement with this decision. I do not find that the language of the
Will is troublesome enough to doubt its veracity. Every person is at
liberty to draw up their Will in whatever language they please; and
once there is, as we have here, proof that the testator was fluent in
more than one language, this aspect, on its own, assumes nosignificance at all. I am therefore unable to accept Mr. Narula’s

submission in this regard.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH,

v
ARUN POPATLAL SHAH,

CORAM : G.S.Patel, J.

Dated : 8th July 2016
Citation: 2016(6) MHLJ 257

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Leading caselaw on purposive interpretation of statutes

 The principle of 'purposive interpretation' or
'purposive construction' is based on the understanding that the Court is
supposed to attach that meaning to the provisions which serve the
'purpose' behind such a provision. The basic approach is to ascertain
what is it designed to accomplish? To put it otherwise, by interpretative
process the Court is supposed to realise the goal that the legal text is
designed to realise. As Aharan Barak puts it:
“Purposive interpretation is based on three components:
language, purpose, and discretion. Language shapes the
range of semantic possibilities within which the interpreter
acts as a linguist. Once the interpreter defines the range,
he or she chooses the legal meaning of the text from
among the (express or implied) semantic possibilities. The
semantic component thus sets the limits of interpretation
by restricting the interpreter to a legal meaning that the
text can bear in its (public or private) language.”
10) Of the aforesaid three components, namely, language, purpose and
discretion 'of the Court', insofar as purposive component is concerned,
this is the ratio juris, the purpose at the core of the text. This purpose is
the values, goals, interests, policies and aims that the text is designed to
actualize. It is the function that the text is designed to fulfil.
Aharan Barak – Purposive Interpretation in Law
11) We may also emphasize that the statutory interpretation of a provision is
never static but is always dynamic. Though literal rule of interpretation,
till some time ago, was treated as the 'golden rule', it is now the doctrine
of purposive interpretation which is predominant, particularly in those
cases where literal interpretation may not serve the purpose or may lead
to absurdity. If it brings about an end which is at variance with the
purpose of statute, that cannot be countenanced. Not only legal process
thinkers such as Hart and Sacks rejected intentionalism as a grand
strategy for statutory interpretation, and in its place they offered
purposivism, this principle is now widely applied by the Courts not only in
this country but in many other legal systems as well.


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 8731 OF 2015
(Arising out of S.L.P. (Civil) No.19617 of 2015)
SHAILESH DHAIRYAWAN …APPELLANT

VERSUS
MOHAN BALKRISHNA LULLA ...RESPONDENT

R.F. Nariman, J.
Dated;OCTOBER 16, 2015.
Citation;(2016)3 SCC619

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Whether confession recorded by court in Hindi language of pakistani National is valid?

With these principles in mind, we now turn to the requirements

of Rule 15(1) of TADA Rules and the facts in the matter. Rule 15(1)

stipulates that the confession “shall invariably be recorded in the

language in which such confession is made and if that is not

practicable, in the language used by such police officer for official

purposes or in the language of the Designated Court ……”. The

expression “invariably” itself suggests that the requirement under the

Rule is discretionary and not mandatory. The record in the present

matter is very clear that the confessing accused Ghulam Nabi was

produced before PW1 S.K. Bhatnagar on 16.12.1995, was given

statutory warning and time to reflect. Everything was explained to

him and only thereafter his thumb impression was taken. On the next

occasion when the confessing accused was again produced before the

witness, soon after the recording of the confession it was again

explained to him, read over and only thereafter the thumb impression

was taken. At no stage during the recording on these two occasions,

nor at the stage when the witness was in the box, there is anything on

record, or even a suggestion that the confessing accused did not

understand or was not made to understand the contents of the

confession. The contents of the confession also disclose that many of

the assertions are personal to the confessing accused which could only

be gathered after due conversation with the Recording Officer.

 The language used as a means of communication between the

confessing accused and the recording officer being Hindi or

Hindustani, such recording of confession in Hindi language is

completely in conformity with the requirement of the Rule. The

conclusion drawn by the trial court that Ghulam Nabi being Pakistani

national his language must be Urdu and therefore the recording of the

confession in a language other than Urdu, must be held to be not in

conformity, is wrong. Nothing has been placed on record that the

confessing accused did not understand the line of questioning or that

he was not made to understand the contents of the confession after the

recording was complete. In our view the assessment made by the trial

court in this behalf is completely incorrect and against the record.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1743/2009

State of J&K 

V

Wasim Ahmed Malik @ Hamid and another.

Citation; (2015)8 SCC465

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Whether it is permissible to use language other than English in High court?

Gujarat High Court. In a Criminal Revision Application before it under Section 397 r/w Section 401 of Cr.P.C., where the applicant wanted to appear party-in-person and present and argue his case in Hindi before the High Court and had also brought another friend to assist in Gujarati, the High Court decided against allowing use of any language other than English to be used in the proceedings before the Court.

The High Court held that Article 348(1) and (2) of the Constitution of India r/w Rule 31A and 37 of the Gujarat High Court Rules, 1993 clearly lay down that no language other than English could be used in a proceeding before it since the Language of the Court under Article 348(1) is English and Article 348(2) allows any other language to be used only if there is authorization by the Governor with previous consent of the President of India to this effect. However there is no such previous authorization of the Governor, in effect, in State of Gujarat. The High Court also held that Rule 31A of Gujarat High Court allows a party-in-person to assist the Court only if he has the ability to both understand and express in English. The Court can, in specific cases, allow written submissions to be in Gujarati as laid down in Rule 37; however, oral submissions have always to be in English only, which is the lahnguage of the Court under Article 348(1) of the Constitution.

The Court also relied on various Supreme Court judgments to drive home its point viz. Dr. Vijay Laxmi Sadho v. Jagdish (2001) 2 SCC 247, where the Governor of M.P., under Article 348(2), with the consent of the President, had authorized use of Hindi language in the court proceedings. So the language could be thus used.

However, in Madhu Limaye v. Ved Murti (1970) 3 SCC 738, when Mr. Raj Narain insisted for arguing in Hindi and the learned advocate for the other side and the members of the Bench were unable to understand his argument in Hindi, the Supreme Court provided three options and since none was acceptable to him, his intervention was cancelled. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Criminal Reference No. 4 of 2015 in Criminal Revision Application (for Maintenance) No. 201 of 2015,

Decided On: 08.07.2015

Manish Kanaiyalal Gupta Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

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Whether it is permissible for judge to translate statements from language of parties to language of court?

Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We hear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not set either the admissibility of the statement or its reliability, unless there are other reasons to doubt the truth of it.

Supreme Court of India

State Of Rajasthan vs Bhup Ram on 13 January, 1997

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